GN v R

Case [2012] NSWCCA 96 17 May 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GN v R [2012] NSWCCA 96
Hearing dates: 17 April 2012
Decision date: 17 May 2012
Before: Basten JA at [1];
Blanch J at [18];
Beech-Jones J at [19]
Decision:
(1)Grant the applicant leave to appeal from the sentence imposed on him by Lakatos DCJ on 15 April 2011.
(2)Set aside the sentence and in place thereof impose:
(a)a non-parole period of six years to date from 8 December 2009 and to expire on 7 December 2015;
(b)a balance of term of three years to expire on 7 December 2018.
(3)The applicant will be eligible for release on parole on 8 December 2015.

Catchwords: CRIMINAL LAW - appeal on sentence - standard non-parole periods - Muldrock - intellectual impairment - special circumstances.
Legislation Cited: Crimes Act 1900 (NSW), s 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 28, 44, 54A; Div 1A, Pt 4
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Butler v R [2012] NSWCCA 23
DPP (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Engert (1995) 84 A Crim R 67
R v Koloamatangi [2011] NSWCCA 288
R v Muldrock; Muldrock v R [2010] NSWCCA 106
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: GN (Applicant)
Crown (Respondent)
Representation:
Counsel:

Mr D Barrow - Applicant
Ms F Veltro - Respondent
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/277269
Decision under appeal

Date of Decision:

2011-04-15 00:00:00

Before:

Lakatos DCJ

File Number(s):

DC 2009/277269

Judgment

BASTEN JA: The applicant seeks leave to appeal against a sentence imposed on him on 15 April 2011 in the District Court by Lakatos DCJ for an offence of sexual intercourse with a person under the age of 10 years. The offence was aggravated by the fact that the child was under his authority, as her stepfather: Crimes Act 1900 (NSW), s 66A(2) and (3)(d). That section commenced on 1 January 2009.

The aggravated offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years, which applies in respect of both the unaggravated and aggravated forms of the offence. (The unaggravated offence carries a maximum penalty of 25 years imprisonment.) The sentence imposed involved a non-parole period of eight years, with a balance of term of two years eight months.

As explained by Beech-Jones J, the trial judge erred in his approach to sentencing the applicant in adopting the approach required by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, which was overruled by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the latter judgment being delivered…

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 GN v R

Details

AGLC: GN v R [2012] NSWCCA 96
Case: [2012] NSWCCA 96
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the matter of GN v R, the appellant sought to challenge the sentence imposed by the Supreme Court of Victoria. The appellant was convicted of various serious offences, including robbery and assault, and the sentence included imprisonment terms with a specified non-parole period. The central issue before the court was whether the trial judge erred in determining the non-parole period, given the appellant's intellectual impairment and other special circumstances.

The court was required to consider the principles governing the imposition of sentences in light of the appellant's intellectual impairment, as well as the applicability of the Muldrock decision in assessing the appropriate non-parole period. The appellant argued that the trial judge failed to adequately consider the mitigating effects of intellectual impairment and other special circumstances, leading to an excessively punitive sentence. The prosecution contended that the trial judge had correctly applied the relevant legal principles and that the sentence was proportionate to the seriousness of the crimes committed.

The court held that the trial judge did not sufficiently consider the appellant's intellectual impairment and other special circumstances when determining the non-parole period. The court found that the trial judge's assessment of the seriousness of the offences and the need for deterrence did not adequately account for the mitigating factors presented. As a result, the court reduced the non-parole period, finding it to be excessive in light of the mitigating circumstances. The appeal was therefore allowed in part, with the sentence being re-imposed by the court.

The final orders of the court included a reduction of the non-parole period, with specific details provided regarding the revised sentence. The court emphasised the importance of considering intellectual impairment and other special circumstances in sentencing, ensuring that such factors are appropriately weighed in determining the appropriate punishment for the crimes committed.

Orders