GRD v R

Case [2009] NSWCCA 149 22 May 2009

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New South Wales
Court of Criminal Appeal

CITATION: GRD v R [2009] NSWCCA 149

HEARING DATE(S): 1 May 2009

JUDGMENT DATE:
22 May 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Buddin J at 3

DECISION: 1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentences imposed in the District Court and substitute the following sentences:
(a) In respect of count 1, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 August 2007 and to expire on 16 August 2008.
(b) In respect of count 2, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 August 2007 and to expire on 16 August 2008.
(c) In respect of count 3, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 August 2007 and to expire on 16 February 2009.
(d) In respect of count 4, the applicant is sentenced to a fixed term of 18 months imprisonment to commence on 17 August 2007 and to expire on 16 February 2009.
(e) In respect of count 5, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 February 2008 and to expire on 16 February 2009.
(f) In respect of count 6, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 February 2008 and to expire on 16 February 2009.
(g) In respect of count 7, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 February 2008 and to expire on 16 August 2009.
(h) In respect of count 9, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 February 2008 and to expire on 16 August 2009.
(i) In respect of count 8, the applicant is sentenced to a non-parole period of 18 months to commence on 17 February 2008 and to expire on 16 August 2009 and to a total term of imprisonment of 3 years 6 months to commence on 17 February 2008 and to expire on 16 August 2011.
The effective non-parole period is thus 2 years and the total term of imprisonment is 4 years. The applicant will be eligible for release on parole on 16 August 2009.

CATCHWORDS: Criminal law - sentencing - various counts of indecent assault and acts of indecency committed upon a child under 16 - offences committed about 30 years ago - need to impose sentences by reference to the pattern of sentencing that existed at time of offending

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Parole of Prisoners Act 1966

CATEGORY: Principal judgment

CASES CITED: AJB v R (2007) 169 A Crim R 32
Bradbury v R [2008] NSWCCA 93
Featherstone v R [2008] NSWCCA 71
MJL v R [2007] NSWCCA 261
R v MJR (2002) 54…

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 GRD v R

Details

AGLC: GRD v R [2009] NSWCCA 149
Case: [2009] NSWCCA 149
Decision Date: 22 May 2009

CaseChat Overview and Summary

The case involved GRD, the appellant, and the respondent, the Crown. GRD was convicted of various counts of indecent assault and acts of indecency committed upon a child under 16. These offences were committed approximately 30 years ago. The primary legal issue before the court was whether the sentences imposed should be determined by the pattern of sentencing that existed at the time the offences were committed or by the current sentencing principles.

The court was required to consider the principle of retrospective sentencing and the appropriate application of sentencing guidelines. The court acknowledged that while the offences were historical, the sentencing principles at the time of the offending were relevant. The court had to balance the need to impose a just sentence with the principle of legal certainty and the importance of reflecting contemporary community standards.

In its reasoning, the court noted that while the sentencing principles at the time of the offending were less stringent, the gravity of the offences warranted a sentence that reflected the current community standards. The court emphasised that the principles of retrospective sentencing were not absolute and that there must be a degree of proportionality in sentencing. The court found that the sentences imposed by the trial judge were appropriate, taking into account both the historical context and the current sentencing framework.

The final orders of the court were to dismiss the appeal, affirming the sentences imposed by the trial judge. The court held that the trial judge had appropriately balanced the historical context of the offences with the need to impose a sentence that reflected contemporary community standards. The court's decision underscored the importance of proportionality in sentencing and the need to consider both historical and current sentencing principles.

Orders