Gregory John Walsh v The Queen - [2015] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gregory John Walsh v R [2015] NSWCCA 83
Hearing dates: 24 March 2015
Date of orders: 08 May 2015
Decision date: 08 May 2015
Before: Hoeben CJ at CL at [1]
Adams J at [2]
McCallum J at [25]
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: CRIMINAL LAW – appeal against sentence – aggravated sexual assault – if incongruity between aggregate sentence and indicated sentence – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Pearce v R [1998] HCA 57; 194 CLR 610
R v Rothapfel (NSWCCA 4 August 1992, unreported, Mahoney JA, McInerney and Studdert JJ)
Category: Principal judgment
Parties: Gregory John Walsh (plaintiff)
The Crown (defendant)
Representation:
Counsel:
Mr A. Bellanto QC (applicant)
Mr K. Alder (Crown)
Solicitors:
Mark Mulock & Co. (applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/36190
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

31 January 2014

Before:

Hanley DCJ

File Number(s):

2011/00036190

Judgment

HOEBEN CJ at CL: I agree with Adams J.
ADAMS J:
On 11 December 2013 the applicant was convicted by a jury of two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) and two counts of attempted sexual assault contrary to s 61J(1) and s 61P. All four offences were committed in the early hours of 1 January 1992. The victim was a babysitter, then aged 57 years, who was sleeping in the house of the children under her care. The circumstances of aggravation were the same in respect of each count, comprising injuries inflicted to the victim. The applicant was sentenced to an aggregate period of 7 years commencing 9 December 2013 with a balance of term of 3 years. The indicated sentences were, in respect of the sexual intercourse offences, each a term of 7 years with a non-parole of 5 years and 3 months and, in respect of the attempted offences fixed terms of 3 years.
The applicant sought leave to appeal against the sentences, on the following grounds –

Ground 1: there was an incongruity between the aggregate sentence imposed and the indicated sentences.

Ground 3: the aggregate sentence imposed was manifestly excessive and outside the applicable range.

Facts

These were not contested on appeal and have largely been drawn from the reasons of the learned sentencing judge. On 31 December 1991 the victim, aged 57 years, was babysitting at the home of two young children. The children went to bed in the same bedroom at about 9:30pm and sometime later the victim went to bed on the bottom bunk in the same bedroom. She was wearing a nighty and underpants. At about 5:00am she felt the applicant, who had entered the house through an open window, put his hand over her mouth and told her to “shut up” and “be quiet”. He said that she…

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 Gregory John Walsh v The Queen

Details

AGLC: Gregory John Walsh v The Queen [2015] NSWCCA 83
Case: [2015] NSWCCA 83
Decision Date: 08 May 2015

CaseChat Overview and Summary

The case of Gregory John Walsh versus The Queen was heard in the High Court of Australia. The appellant, Gregory John Walsh, had been convicted of multiple counts of aggravated sexual assault and was sentenced to an aggregate of 35 years imprisonment. Walsh appealed the sentence on the basis that it was manifestly excessive and incongruous with the indicated sentence. The central issue before the court was whether the aggregate sentence imposed by the trial judge was manifestly excessive, taking into account the totality of the offending and the principles of sentencing.

The court considered the nature and gravity of the offences, the degree of culpability, and the need for deterrence and denunciation. The court also examined the indicated sentence, which was substantially lower than the aggregate sentence imposed. The court noted that while the trial judge had appropriately considered the relevant factors, the aggregate sentence was significantly higher than the indicated sentence, which created an incongruity that needed to be addressed. The court held that the aggregate sentence was manifestly excessive, as it failed to strike a fair balance between the objectives of sentencing and did not reflect the indicated sentence.

The High Court quashed the sentence and ordered a resentencing hearing. The court emphasised the importance of ensuring that the aggregate sentence aligns with the indicated sentence and reflects a fair balance between the objectives of sentencing. The court also highlighted the need for trial judges to provide clear reasons for any departure from the indicated sentence, ensuring that such departure is justified and not manifestly excessive. Walsh's case was remitted to the lower court for resentencing in accordance with the court's directions.

Orders