Ie v R

Case [2008] NSWCCA 70 21 April 2008

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
IE v R [2008] NSWCCA 70

FILE NUMBER(S):
2004/3916

HEARING DATE(S):
27 February 2008

JUDGMENT DATE:
21 April 2008

PARTIES:
IE - (Applicant)
Regina - (Respondent)

JUDGMENT OF:
Spigelman CJ Hulme J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/11/0349

LOWER COURT JUDICIAL OFFICER:
Shadbolt DCJ

LOWER COURT DATE OF DECISION:
11 August 2006

COUNSEL:
S. Corish - (Applicant)
N. Norman - (Respondent)

SOLICITORS:
Legal Aid Commission - (Applicant)
Solicitor of Public Prosecutions - (Respondent)

CATCHWORDS:
SENTENCE APPEAL - Aggravated Sexual Intercourse Without Consent (In Company) - juvenile offender - whether youth an objective factor - whether failure to take account of principles under s 6 Children (Criminal Proceedings) Act 1987 - whether manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Children (Criminal Proceedings) Act 1987

CASES CITED:
DB v Regina : DNN v Regina [2007] NSWCCA 27
R v MA [2004] NSWCCA 92
R v AEM [2002] NSWCCA 58
R v Voss [2003] NSWCCA 182
R v Way (2004) 60 NSWLR 168
R v P [2004] NSWCCA 218
Langbein v R [2008] NSWCCA 38
Elliot v The Queen ; Blessington v The Queen [2007] HCA 51
R v Reyes [2005] NSWCCA 218
Wray v R [2007] NSWCCA 162

TEXTS CITED:

DECISION:

Leave to appeal allowed.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3916
SPIGELMAN CJ
HULME J
LATHAM J
21 APRIL 2008

IE v REGINA

Judgment

SPIGELMAN CJ : I agree with Latham J.
HULME J : I agree with the orders proposed by Latham J and, subject to the following observations, generally with her Honour’s remarks.
For reasons expressed in Wray v R [2007] NSWCCA 162 I do not agree with the remarks of Grove J in R v Reyes [2005] NSWCCA 218 at [65]. Neither do I regard the likely response of the Parole Board to any continued denial of guilt by the Applicant as speculative. The very strong probability, if not certainty, is that if the Applicant continues to deny his guilt, he will not be admitted to parole much, if at all, before the expiration of his 10 year sentence. The attitude of the Parol Board towards sex offenders who do not admit their guilt and thus are not regarded as satisfactorily completing offender programs is, as indicated in my reasons in Wray v R well known.
However, one matter about which there is much more doubt is whether the Appellant will continue to deny his guilt. Although not all the complainant had to say during the course of her evidence was corroborated, by reason of CCTV footage, a great deal was and indeed the Applicant admitted to physical presence at or very close to the events the subject of the charges. In the circumstances of this case, there is no particular ground for concluding that the Applicant will continue to adhere to the stance he took at a time when he was seeking to avoid conviction. For these reasons I see…

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 Ie v R

Details

AGLC: Ie v R [2008] NSWCCA 70
Case: [2008] NSWCCA 70
Decision Date: 21 April 2008

CaseChat Overview and Summary

In the case of Ie v R, the appellant, a juvenile offender, appealed against his sentence for aggravated sexual intercourse without consent in company. The matter was heard in the Court of Criminal Appeal. The appeal focused on the sentence's severity, with the appellant contending that it was excessive and failed to appropriately consider the principles outlined in section 6 of the Children (Criminal Proceedings) Act 1987.

The primary legal issues were whether the youth of the offender should be considered an objective factor in determining the sentence and if the failure to take into account the statutory principles led to a manifestly excessive sentence. The court needed to assess whether the sentence imposed was appropriate in light of the statutory considerations and the objective factors relevant to the offender's age.

The Court of Criminal Appeal found that the trial judge had not sufficiently considered the statutory principles and that the youth of the offender was an objective factor that should have been taken into account. The court held that the sentence was manifestly excessive due to these oversights. Consequently, the appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The final orders of the Court of Criminal Appeal were to allow the appeal, set aside the original sentence, and remit the matter to the trial court for re-sentencing, ensuring that the statutory principles and the objective factor of the offender's youth were properly considered.

Orders