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Gifford v R

Gifford v R

Case [2016] NSWCCA 302 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gifford v R [2016] NSWCCA 302
Hearing dates: 25 November 2016
Decision date: 16 December 2016
Before: Ward JA at [1];
Bellew J at [140];
Hidden AJ at [141]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – use carriage service to procure a person under 16 for sexual activity – whether judge erred in rejecting unchallenged evidence of counsellor relating to applicant’s apparent lack of intention to meet with victims – whether judge erred in characterisation of objective seriousness of offences or in assessment of applicant’s prospects of rehabilitation – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), ss 5.2, 5.6(1), 474.17(1), 474.26(1), 474.28(8)
Criminal Code 1899 (Qld), s 218A
Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69
Goodridge v R [2014] NSWCCA 37
Hammond v R [2008] NSWCCA 138
Heath v R [2016] NSWCCA 24
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
O’Neil-Shaw v R [2010] NSWCCA 42
R v Bonython (1984) 38 SASR 45
R v Chard (1971) 56 Cr App R 268
R v Fahda [2013] NSWCCA 86
R v Fuller [2010] NSWCCA 192
R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76
R v Hays [2006] QCA 20; (2006) 160 A Crim R 45
R v Klamo (2008) 18 VR 644; [2008] VSCA 75
R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
R v Makoare [2001] 1 NZLR 318
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v PCB [2012] NSWSC 482
R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Rodriguez [2010] NSWSC 198
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Reberger v R [2011] NSWCCA 132
Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133
The Queen v Olbrich (1999) 199 CLR…

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 Gifford v R

Details

AGLC: Gifford v R [2016] NSWCCA 302
Case: [2016] NSWCCA 302
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the matter of Gifford v R, the applicant was convicted of using a carriage service to procure a person under 16 for sexual activity. The applicant appealed the sentence imposed by the trial judge, arguing that the judge had erred in rejecting unchallenged evidence of a counsellor, erred in the characterisation of the objective seriousness of the offences, and erred in the assessment of the applicant's prospects of rehabilitation. The applicant also contended that the sentence was manifestly excessive. The High Court of Australia granted leave to appeal but ultimately dismissed the appeal.

The primary legal issues before the court were whether the trial judge erred in rejecting the unchallenged evidence of the counsellor regarding the applicant's apparent lack of intention to meet with the victims, whether the judge erred in the characterisation of the objective seriousness of the offences or in the assessment of the applicant's prospects of rehabilitation, and whether the sentence was manifestly excessive. The court had to consider these issues in light of the principles of sentencing and the principles of appellate review.

The court found that the trial judge did not err in rejecting the unchallenged evidence of the counsellor. The judge was entitled to consider the credibility and weight of the evidence, and there was no error in the characterisation of the objective seriousness of the offences or in the assessment of the applicant's prospects of rehabilitation. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders