GS v R

Case [2016] NSWCCA 266


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: GS v R [2016] NSWCCA 266
Hearing dates:12 October 2016
Decision date: 30 November 2016
Before: 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
Legislation Cited: Crimes Act 1900 (NSW) ss 61E, 61J, 61M
Crimes (Administration of Sentences) Act 1999 (NSW) s 160
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 21A, 44, 45
Cases Cited: Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1
Collier v R [2012] NSWCCA 213
Convery v R [2014] NSWCCA 93
Dinsdale v The Queen 202 CLR 321; [2000] HCA 54
Gulyas v State of Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
LG v R [2012] NSWCCA 249
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v the Queen (1988) 166 CLR 59; [1998] HCA 70
Nelson v R [2016] NSWCCA 130
Pearce v The Queen (1988) 194 CLR 610; [1998] HCA 57
R v Crowley and Garner (1991) 55 A Crim R 201
R v CMB [2014] NSWCCA 5
R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep)
R v Gavel [2014] NSWCCA 56
R v Gommeson [2014] NSWCCA 159
R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
R v Holyoak (1995) 82 A Crim R 502
R v Katon [2008] NSWCCA 228
R v MAK (2006) 167 A Crim R 159

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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.

Orders

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