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GP (a pseudonym) v R

GP (a pseudonym) v R

Case [2021] NSWCCA 180 6 August 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GP (a pseudonym) v R [2021] NSWCCA 180
Hearing dates: 07 June 2021
Date of orders: 06 August 2021
Decision date: 06 August 2021
Before: Brereton JA at [1]
N Adams J at [6]
Cavanagh J at [20]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to 12 years imprisonment commencing on 17 July 2018 and expiring on 16 July 2030.
(5) The applicant will serve a non-parole period of 8 years and 7 months commencing on 17 July 2018 and ending on 16 February 2027.

Catchwords:
CRIME – Appeals – Appeal against sentence – Maintenance of unlawful sexual relationship with a child contrary to s 66EA(1) Crimes Act 1900 (NSW) – Error in finding as to aggravating factors - Appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases Cited:
A v R [2020] NSWCCA 145
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Burr v R [2020] NSWCCA 282
Facenfield v R [2021] NSWCCA 128
KAB v R [2015] NSWCCA 55
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Mills v R [2017] NSWCCA 87
Newman(a pseudonym)vR [2019] NSWCCA 157
R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
R v MS [2005] NSWCCA 322
R v Oloitoa [2007] NSWCCA 177
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Principal judgment
Parties: GP (a pseudonym) (Applicant)
Crown (Respondent)
Representation:
Counsel:
C O’Donnell SC with P Hart (Applicant)
M Kumar (Respondent)
Solicitors:
Michael Doughty Solicitor (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/281818 and 2018/74075
Publication restriction: The publication of each child victim’s name or any other information that might identify her is prohibited (Crimes Act 1900, s 578A; Children (Criminal Proceedings) Act 1987, s 15A).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 493

Date of Decision:

16 September 2019

Before:

Lerve DCJ

File Number(s):

2017/281818 and 2018/74075

Judgment

BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Cavanagh J, with which I agree.
In my view, the sentencing judge misapprehended the facts when referring (at [26]) to “ejaculation on some occasions”^[1] and (at [27]) to “some of the acts were penile/vaginal intercourse with ejaculation”^[2]. There was, in the agreed facts on which the applicant was sentenced, no evidence to support a conclusion, beyond reasonable doubt, that ejaculation occurred on more than one occasion.
1. Remarks on Sentence at [26].
2. Remarks on Sentence at [27].
Ejaculation is an aggravating circumstance.^[3] It was so treated by his Honour.^[4] There is a real possibility…

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 GP (a pseudonym) v R

Details

AGLC: GP (a pseudonym) v R [2021] NSWCCA 180
Case: [2021] NSWCCA 180
Decision Date: 06 August 2021

CaseChat Overview and Summary

The appeal in GP v R was brought by the defendant, a pseudonym used to protect the identity of the individual convicted of maintaining an unlawful sexual relationship with a child. The case was heard in the New South Wales Court of Criminal Appeal. The appeal challenged the sentence imposed by the lower court, specifically questioning whether the sentence was excessive and whether there were errors in the consideration of aggravating factors.

The primary legal issue before the court was whether the trial judge erred in considering certain factors as aggravating in the context of sentencing for the offence under section 66EA(1) of the Crimes Act 1900 (NSW). The defendant argued that the sentence was disproportionately severe and that the trial judge misapplied the criteria for aggravating factors. The prosecution, on the other hand, maintained that the sentence was appropriate given the gravity of the offence.

The Court of Criminal Appeal found that the trial judge had indeed erred in his application of the aggravating factors. The court held that the trial judge had not sufficiently justified the weight given to certain factors, which led to an overestimation of the severity of the sentence. Consequently, the court allowed the appeal on the basis that the sentence was excessive due to these errors in the application of the aggravating factors. The case was remitted to the lower court for resentencing, ensuring that the proper criteria and weight are applied to the aggravating factors.

Orders