McClellan CJ at CL [1] James J at [135] Davies J at [136]
Decision:
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted. Apart from the sentences for counts 3 and 8 the sentences imposed in the District Court are confirmed.
3. In relation to counts 3 and 8 the sentences are quashed and in respect of count 3 the appellant is sentenced to a non-parole period of 5 years commencing on 20 October 2006 and an additional period of 1 year and 8 months commencing on 20 October 2011 and expiring on 19 June 2013.
4. In relation to count 8 the appellant is sentenced to a non-parole period of 5 years commencing on 20 October 2007 and an additional period of 1 year and 8 months commencing on 20 October 2012 and expiring on 19 June 2014.
Catchwords:
CRIMINAL - appeal against convictions - Black direction - appropriate "perseverance directions" to jury with respect to majority verdicts - had directions undermined the applicant's common law right to a unanimous verdict - appeal dismissed.
CRIMINAL - application for leave to appeal against sentence - sexual offence in home of victim not aggravating factor where offender is lawfully present - committing offences for offender's own sexual gratification is not an aggravating factor - leave to appeal granted - appeal granted and sentences varied with respect to counts 3 and 8 only
[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.
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AGLC
Ingham v R [2011] NSWCCA 88
Case
[2011] NSWCCA 88
Decision Date
CaseChat Overview and Summary
The case of Ingham v R involves an appeal against convictions and a subsequent application for leave to appeal against sentence. The applicant, Ingham, appealed against his convictions and sentence following charges related to sexual offences committed against a victim. The appeal and the application for leave to appeal were heard by the court. The key issues before the court were whether the trial judge's directions to the jury regarding majority verdicts were appropriate and whether certain factors should have been considered as aggravating elements in sentencing.
The court examined whether the trial judge had correctly directed the jury concerning the possibility of a majority verdict, a matter often referred to as a Black direction. The court assessed whether these directions had the effect of undermining the applicant's common law right to a unanimous jury verdict. Additionally, the court considered whether certain factors identified by the prosecution as aggravating elements in the sentencing phase were correctly applied, specifically whether the fact that the offences were committed in the victim's home and that the offender was lawfully present therein, or that the offences were committed for the offender's own sexual gratification, should have been considered as aggravating factors.
The court concluded that the trial judge's directions to the jury regarding majority verdicts did not undermine the applicant's right to a unanimous verdict, and therefore dismissed the appeal against convictions. In relation to the sentencing appeal, the court found that the factors identified by the prosecution were not appropriately considered as aggravating elements, leading to the granting of leave to appeal. Consequently, the appeal was allowed with respect to counts 3 and 8, and the sentences were varied accordingly.