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Gibbons (a pseudonym) v R

Gibbons (a pseudonym) v R

Case [2019] NSWCCA 150 12 July 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gibbons (a pseudonym) v R [2019] NSWCCA 150
Hearing dates: 4 February 2019
Decision date: 12 July 2019
Before: Simpson AJA at [1]
Button J at [65]
Lonergan J at [202]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.

Catchwords: CRIME – application for leave to appeal against sentence – sexual intercourse with child under 10 – convictions on two counts after trial – very adverse pattern of prior similar offending – whether assessments of objective seriousness erroneous – whether application of totality principle erroneous – whether aggregate head sentence of imprisonment for 30 years with aggregate non-parole period of 22 years 6 months manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 66A(2)
Crimes (Child Assault) Amendment Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A, Pt 3 Div 3, Pt 4 Div 1A
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases Cited: BR v R [2015] NSWCCA 255
Bravo v R [2015] NSWCCA 302
Faehringer v R [2017] NSWCCA 248
Franklin v R [2016] NSWCCA 319
Leslie v R [2013] NSWCCA 48
Mammone v R [2013] NSWCCA 13
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MD v R [2015] NSWCCA 37
Mills v R [2017] NSWCCA 87
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
R v CTG [2017] NSWCCA 163
R v MAK; R v MSK [2006] MSWCCA381; (2006) 167 A Crim R 159
R v Scavera [2016] NSWCCA 145
Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: Lee Gibbons (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
K Averre (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/268178
Publication restriction: Pseudonyms used to protect the identity of a victim of child sexual assault
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Criminal

Date of Decision:

17 February 2017

Before:

Traill DCJ

File Number(s):

2013/00268178

Judgment

SIMPSON AJA: I have had the opportunity of reading in draft the judgment of Button J. I take a different approach to this difficult sentencing exercise. It is necessary to re-state, as concisely as possible, the basic relevant facts.
At the time of the applicant’s offending, s 66A of the Crimes Act 1900 (NSW) relevantly provided:

“66A Sexual intercourse—child under 10
(1) Child under 10
Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2) Child under 10—aggravated offence
Any person who has sexual intercourse with…

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 Gibbons (a pseudonym) v R

Details

AGLC: Gibbons (a pseudonym) v The Queen [2019] NSWCCA 150
Case: [2019] NSWCCA 150
Decision Date: 12 July 2019

CaseChat Overview and Summary

The appellant, referred to as Gibbons, was convicted on two counts of sexual intercourse with a child under the age of 10 years. Gibbons subsequently applied for leave to appeal against the severity of the sentence imposed by the lower court. The appeal was heard in the High Court of Australia. The crux of the appeal was whether the trial judge had erred in his assessment of the objective seriousness of the crimes and in the application of the totality principle when determining the sentence. Additionally, Gibbons contended that the aggregate head sentence of imprisonment for 30 years, with an aggregate non-parole period of 22 years and 6 months, was manifestly excessive.

The High Court examined the trial judge's sentencing process, focusing on whether the judge had erred in assessing the objective seriousness of the crimes and in applying the totality principle. The Court noted that the trial judge had carefully considered the facts of the case, including Gibbons' extensive history of similar offending, which was a significant factor in the sentencing decision. The Court found that the trial judge had appropriately considered the principles of sentencing and that there was no error in the assessment of objective seriousness or in the application of the totality principle. The Court further held that the sentence imposed, while severe, was not manifestly excessive given the gravity of the offences and the need to protect the community.

In light of the findings, the Court dismissed Gibbons' application for leave to appeal. The Court was satisfied that the trial judge had appropriately exercised his discretion in sentencing, taking into account all relevant factors. The sentence, although severe, was deemed to be within the range of appropriate penalties for the crimes committed. The Court did not find any error that warranted allowing the appeal.

Orders