Gleeson JA at [1]; Fagan J at [96]; N Adams J at [103]
Decision:
1. Extend time for leave to appeal and grant leave to appeal.
2. Dismiss the appeal.
Catchwords:
CRIMINAL LAW – sentencing - appeal – severity of sentence – Crimes Act 1900 (NSW) s 61M(2) – guilty plea to three indecent assault offences and two similar Form 1 offences – where victims aged 6 and 9 years – sentences imposed while applicant serving existing sentence for unrelated conviction for aggravated sexual intercourse under s 61J(1) – where unrelated victim aged 11 years – where new sentences wholly cumulative on non-parole period of first sentence – whether totality principle not applied by sentencing judge – applicant of advanced age and ill-health with short life expectancy – need for sentence to reflect overall criminality
CRIMINAL LAW – sentencing – appeal – whether sentences manifestly excessive – where finding that offending particularly serious – vast age discrepancy between applicant and victims – where aggravating factor – abuse of position of trust and authority – psychological and physical coercion – offences not isolated – brazen – separate victims – vulnerable due to young age – where degree of concurrency allowed – objective gravity of total criminality – whether accumulation on existing sentence or between new sentences unreasonably high – whether sentences unreasonable or plainly unjust
[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 GS v R
Sign in free to access the full text
Details
AGLC
GS v R [2016] NSWCCA 266
Case
[2016] NSWCCA 266
Decision Date
CaseChat Overview and Summary
In this case, the applicant appealed against the severity of the sentences imposed on him for three indecent assault offences and two similar Form 1 offences against two children. The sentencing was conducted in the Supreme Court of New South Wales, with the appeal heard in the Court of Criminal Appeal. The applicant had already been serving a sentence for aggravated sexual intercourse under section 61J(1) of the Crimes Act 1900 (NSW) when the new sentences were imposed. The new sentences were wholly cumulative on the non-parole period of his first sentence, raising concerns about the application of the totality principle.
The appeal centred on whether the sentences were manifestly excessive and whether they failed to adequately reflect the overall criminality of the applicant. The court considered several factors, including the vast age discrepancy between the applicant and his victims, the abuse of a position of trust and authority, the psychological and physical coercion employed, and the brazen nature of the offences. The court also considered the vulnerability of the victims due to their young age and the lack of isolation in the offending. The applicant's advanced age and ill-health, which resulted in a short life expectancy, were also factors considered by the court.
The Court of Criminal Appeal determined that the sentences were not manifestly excessive. The court acknowledged the particular seriousness of the offending and found that the sentences adequately reflected the objective gravity of the total criminality. The court found that the degree of concurrency allowed and the accumulation on the existing sentence or between the new sentences was not unreasonably high. Consequently, the appeal was dismissed, and the sentences were upheld.