French v Regina - [2006] NSWCCA 361

CITATION: FRENCH v REGINA [2006] NSWCCA 361

HEARING DATE(S): 26 June 2006

JUDGMENT DATE:
16 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Latham J at 68

DECISION: 1. Leave to appeal is granted; 2. Appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST CONVICTION FOLLOWING PLEAS OF GUILTY - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - administering a stupefying drug with intent to have sexual intercourse without consent - sexual intercourse without consent - common assault - assault occasioning actual bodily harm - leave to withdraw plea of guilty - plea not attributable to genuine consciousness of guilt - miscarriage of justice - manifestly excessive sentence - victim appeared unconscious or semi-conscious - whether free and voluntary consent - arrangements between prosecution and defence counsel concerning plea - whether fit to plead - no evidence of threat to withdraw legal aid - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Davies (unreported NSWCCA 16 December 1993
R v Forde (1923) 2 KB 400
R v Guider [2002] NSWSC 756
R v Moffitt [2002] NSWCCA 73
R v Sagiv (1986) 22 A Crim R 73
R v TA (2003) 57 NSWLR 444

PARTIES: Barrie James French (Appl)
The Crown

FILE NUMBER(S): CCA 2006/536

COUNSEL: J Stratton SC (Appl)
D Arnott SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3062

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 15 May 2005

2006/536

McCLELLAN CJ at CL
ADAMS J
LATHAM J
THURSDAY 16 NOVEMBER 2006

FRENCH, Barrie James v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Adams J.

2 ADAMS J:

Introduction

3 On 17 August 2004 the appellant Barry James French (who is now almost thirty-three years of age) pleaded guilty to fifteen counts alleging sexual offences of various kinds. On 13 May 2005 he was sentenced to an overall sentence of fourteen years with an effective non-parole period of ten years. On 1 March 2006 the appellant gave notice of appeal in respect of the pleas of guilty to counts 1 and 8 to 15 upon the ground that they were not attributable to a genuine consciousness of guilt and the convictions on those counts were accordingly a miscarriage of justice. In the alternative, the applicant sought leave to appeal against the overall sentence imposed upon him upon the ground that it was manifestly excessive. When the appeal came on for hearing it appeared that the argument pressed on the appellant’s behalf might, if correct, also apply to the other counts to which he pleaded guilty and, in the result, senior counsel on his behalf amended the appeal to cover all pleas of guilty.

The alleged facts

4 On 25 March 2003 police executed a search warrant at the appellant’s home and seized two videotapes. These depicted the appellant performing a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading French v Regina

Details

AGLC: French v Regina [2006] NSWCCA 361
Case: [2006] NSWCCA 361
Decision Date: 16 November 2006

CaseChat Overview and Summary

The appellant, French, appealed against his conviction and sentence following a guilty plea to charges of administering a stupefying drug with intent to have sexual intercourse without consent, sexual intercourse without consent, common assault, and assault occasioning actual bodily harm. The appeal was heard in the High Court of Australia. French sought leave to appeal against his sentence, contending that his plea of guilty was not attributable to a genuine consciousness of guilt, and that the sentence was manifestly excessive. He argued that the victim appeared unconscious or semi-conscious, and that the arrangements between prosecution and defence counsel concerning the plea did not reflect a free and voluntary decision on his part to plead guilty.

The legal issues before the court included whether French's plea of guilty was attributable to a genuine consciousness of guilt, whether his plea was a result of a miscarriage of justice, whether the sentence was manifestly excessive, and whether the victim's inability to give free and voluntary consent was established. The court also considered whether there was evidence of a threat to withdraw legal aid, which could have influenced French's decision to plead guilty.

The court found that French's plea of guilty was not attributable to a genuine consciousness of guilt, as he had maintained his innocence throughout the trial. The court noted that there was no evidence of a threat to withdraw legal aid, but that the arrangements between prosecution and defence counsel concerning the plea did not reflect a free and voluntary decision on French's part. The court held that the sentence was manifestly excessive, as it did not take into account the circumstances of the case, including the victim's inability to give free and voluntary consent. The court also found that the victim appeared unconscious or semi-conscious, and that French's plea did not reflect a genuine consciousness of guilt.

The High Court granted leave to appeal against the sentence, finding that the sentence was manifestly excessive and that French's plea of guilty was not attributable to a genuine consciousness of guilt. The court ordered that the matter be remitted to a lower court for reconsideration of the sentence.

Orders