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Gale v The Queen

Gale v The Queen

Case [2021] NSWCCA 16 19 February 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gale v R [2021] NSWCCA 16
Hearing dates: 2 December 2020
Decision date: 19 February 2021
Before: McCallum JA at [1]
Johnson J at [2]
R A Hulme J at [3]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – manifest excess – taking into account an irrelevant consideration – where arguments on appeal were not made before the sentencing judge – offence of having sexual intercourse with a young person under special care and is aged 17 years or over and under the age of 18 years
SENTENCING – relevant factors on sentence – objective seriousness – relevance of victim’s age to objective seriousness – relevance of a change in the elements of the offence post-sentencing

Legislation Cited:
Crimes Act 1900 (NSW), 61H, 73(1)(2)
Crimes Amendment (Special Care Offences) Act 2020 (NSW), s 73(3)(c), s 67
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:
Carr v R [2020] NSWCCA 214
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PWB v R [2011] NSWCCA 84; (2011) 216 A Crim R 305
RJA v R [2008] NSWCCA 137; 185 A Crim R 178
R v Howes [2000] VSCA 159; (2000) 116 A Crim R 249
R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
Shannon v R [2006] NSWCCA 39

Category: Principal judgment
Parties: Brendan Royce Gale (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Mr E Balodis (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2019/2532
Decision under appeal

Court or tribunal:

District Court

Citation:

[2020] NSWDC 79

Date of Decision:

3 April 2020

Before:

Lerve DCJ

File Number(s):

2019/2532

Judgment

McCALLUM JA: I agree with R A Hulme J.
JOHNSON J: I agree with R A Hulme J.
R A HULME J: Brendan Royce Gale (the applicant) seeks leave to appeal against a sentence imposed in the District Court at Wagga Wagga by his Honour Judge Lerve on 3 April 2020.
For two offences of having sexual intercourse with a person under special care aged 17 years or over and under 18 years, his Honour imposed an aggregate sentence of imprisonment for 1 year, 8 months, with a non-parole period of 1 year. A third offence of the same type was taken into account at the applicant’s request. The sentence took effect on the day of imposition.
His Honour indicated that he would otherwise have imposed individual sentences of imprisonment as follows:

First offence: 13 months (18 months if not for the early plea of guilty).

Second offence (and taking account the third offence): 15 months (21 months).

The applicant seeks to appeal on the following grounds:

(1) The sentencing judge erred assessing the objective seriousness of…

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 Gale v The Queen

Details

AGLC: Gale v The Queen [2021] NSWCCA 16
Case: [2021] NSWCCA 16
Decision Date: 19 February 2021

CaseChat Overview and Summary

The appellant, Gale, was convicted of having sexual intercourse with a young person under special care, who was aged 17 years or over and under the age of 18 years. Gale appealed against the sentence imposed by the sentencing judge, claiming that the sentence was manifestly excessive and that the judge had failed to take into account relevant considerations. Gale also argued that the judge had taken into account irrelevant considerations. The appeal was heard by the High Court of Australia.

The central legal issues in this appeal were whether the sentence was manifestly excessive and whether the sentencing judge had erred by failing to take into account relevant considerations and by taking into account irrelevant considerations. The court had to consider the relevant factors on sentence, the objective seriousness of the offence, the relevance of the victim's age to the objective seriousness, and the relevance of a change in the elements of the offence post-sentencing.

The High Court held that the sentence was not manifestly excessive, and that the sentencing judge had not erred in failing to take into account relevant considerations or in taking into account irrelevant considerations. The court found that the sentencing judge had considered all relevant factors and that the sentence was appropriate in the circumstances. The court also found that the change in the elements of the offence post-sentencing did not affect the relevance of the victim's age to the objective seriousness of the offence. The appeal was dismissed.

The High Court did not make any orders.

Orders