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: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Facenfield v R [2021] NSWCCA 128
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Newman(a pseudonym)vR [2019] NSWCCA 157
Category: Principal judgment Parties: GP (a pseudonym) (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
C O’Donnell SC with P Hart (Applicant)
M Kumar (Respondent)
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:
- 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.
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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…
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- AGLC
- GP (a pseudonym) v R [2021] NSWCCA 180
- Case
- [2021] NSWCCA 180
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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