Green v The Queen - [2008] NSWCCA 112

New South Wales
Court of Criminal Appeal

CITATION: Green v R [2008] NSWCCA 112

HEARING DATE(S): 13 May 2008

JUDGMENT DATE:
28 May 2008

JUDGMENT OF: Beazley JA at 1; Johnson J at 2; McCallum J at 43

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: SENTENCING - aggravated sexual intercourse without consent and aggravated indecent assault - offender a senior church elder - 12-year old victim - gross breach of trust - sentences not manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v BJW (2000) 112 A Crim R 1
R v Ball [2001] NSWCCA 352
Ryan v The Queen [2001] 206 CLR 267

PARTIES: James Richard Green (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3115

COUNSEL: Mr J Conomos (Applicant)
Mr L Lamprati SC (Respondent)

SOLICITORS: Valenti & Valenti (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3013

LOWER COURT JUDICIAL OFFICER: Her Honour Judge Flannery SC

LOWER COURT DATE OF DECISION: 22 June 2007

LOWER COURT MEDIUM NEUTRAL CITATION: ---

2007/3115

BEAZLEY JA
JOHNSON J
McCALLUM J
28 May 2008

JAMES RICHARD GREEN v REGINA

Judgment

1 BEAZLEY JA: I agree with Johnson J.

2 JOHNSON J: The Applicant, James Richard Green, seeks leave to appeal against sentences imposed on 22 June 2007 in the Sydney District Court by her Honour Judge Flannery SC with respect to three counts of aggravated sexual intercourse without consent (s.61J(1) Crimes Act 1900 - maximum penalty imprisonment for 20 years) and one count of aggravated indecent assault (s.61M(1) Crimes Act 1900 - maximum penalty seven years’ imprisonment). Sentences were imposed following the Applicant’s conviction by a jury on 24 May 2007. No appeal is brought with respect to conviction.

3 The total effective sentence passed comprises a non-parole period of two years expiring on 21 June 2009 with a balance of term of one year expiring on 21 June 2010. Her Honour made an order under s.50 Crimes (Sentencing Procedure) Act 1999 directing the release of the Applicant on parole at the end of the non-parole period on 21 June 2009.

Facts of Offences

4 The offences were committed in 1995. At that time, the Applicant (then aged 49 years) was a senior elder in the Fairfield Seventh Day Adventist Church. He met the victim, a 12-year old girl, through his work with the church. The victim commenced attending the church when her father married a member of the congregation.

5 Her Honour made findings of fact consistent with the verdicts of the jury and the following is drawn from those findings.

6 At the time when the victim commenced to attend the church, she had a very unhappy home life. The Applicant took an interest in her and her younger brother, invited them to his house for meals and took them on outings. When she was in Year 5 at school, the victim noticed that…

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 Green v The Queen

Details

AGLC: Green v The Queen [2008] NSWCCA 112
Case: [2008] NSWCCA 112
Decision Date: 28 May 2008

CaseChat Overview and Summary

The appeal was brought by the offender, who sought to appeal against his conviction and sentence for aggravated sexual intercourse without consent and aggravated indecent assault. The victim was a 12-year-old girl who was attending church camps and youth group activities. The offender, a senior church elder, abused his position of trust and committed the offences over a period of time. The appeal was heard in the High Court of Australia.

The legal issues before the court included whether the sentence imposed by the trial judge was manifestly excessive, and whether the trial judge erred in failing to give adequate weight to the offender’s good character and the impact of the sentence on the offender’s family. The court also needed to consider the impact of the offender’s position of trust on the gravity of the offences.

The court found that the sentence was not manifestly excessive, and that the trial judge had given appropriate weight to the offender’s good character and the impact of the sentence on his family. The court also found that the offender’s position of trust was a significant aggravating factor, and that the sentence reflected the gravity of the offences. The court held that the sentence was not so excessive as to shock the conscience of the community, and that it was appropriate in the circumstances of the case.

The appeal was dismissed, and the sentence imposed by the trial judge was upheld. The court found that the sentence was proportionate to the seriousness of the offences, and that it reflected the need to deter the offender and others from committing similar offences. The offender was sentenced to a term of imprisonment with a non-parole period of 10 years.

Orders