IS v R - [2011] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: IS v R [2011] NSWCCA 142
Hearing dates: 2 March 2011
Decision date: 06 July 2011
Before: Hodgson JA at [1]
Adams J at [2]
Hall J at [21]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence on count 4 allowed.
(3) Sentence on count 4 quashed and in lieu thereof the appellant is sentenced to a non-parole period of imprisonment of 7 years from 6 November 2009 to expire on 5 November 2016, and a balance of term of 3 years to expire on 5 November 2019.
(4) Appeal otherwise dismissed.
(5) The appellant will be eligible for release on parole on 6 November 2016.

Catchwords: CRIMINAL LAW - Appeal against sentence - sexual assault - indecent assault - offender father of victim.
SENTENCING - absence of special circumstances warranting departure from statutory ratio - sentence imposed erroneously extended non-parole period beyond statutory ratio.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: R v Attard [2004] NSWCCA 376
Category: Principal judgment
Parties: IS (Applicant)
Regina (Respondent)
Representation: Counsel
S. Corish (Applicant)
C. Maxwell QC (Respondent)
Solicitors
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/5456
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-11-06 00:00:00

Before:

Neilson DCJ

File Number(s):

2009/11/0872

Judgment

HODGSON JA : I agree with Adams J.

ADAMS J :

Introduction

The applicant seeks leave to appeal from sentences imposed in the District Court on 6 November 2009. The applicant pleaded guilty to committing an act of indecency towards a child under 16 years, being count 7 on an indictment dated 1 May 2009, which contained a number of other counts of which the applicant was subsequently found guilty following a trial. The convictions were all of child sexual offences committed against the same victim. On 6 November 2009 the applicant was sentenced as follows:

Count

Offence and date

Maximum

Sentence imposed

1

Sexual intercourse with child under 10 years (1.1.97 - 31.12.97)

20 years
s 66A

NPP: 3 years (8.2.08 - 7.2.11); balance of 2 years to expire 7.2.13

2

Sexual intercourse with child under 10 years (1.1.97 - 31.12.97)

20 years
s 66A

NPP: 3 years (8.8.08 - 7.8.11); balance of 1 year to expire 7.8.12

3

Aggravated indecent assault (child under 10) (1.1.97 - 3.7.98)

10 years
s 61M(2)

NPP: 12 months (8.2.09 - 7.2.10); balance of 6 months to expire 7.8.10

4

Persistent sexual abuse of a child (aggravated sexual intercourse without consent)
(15.1.99 - 31.12.99)

25 years
s 66EA

NPP: 7 years (6.11.09 - 5.5.17); balance of 2 years to expire on 5.11.19

7

Act of indecency towards child under 16 years
(1.1.04 - 3.7.04)

5 years
s 61O(1)

Fixed term: 12 months (6.11.09 - 5.11.10)

8

Aggravated indecent assault (child under 16)
(1.9.02 - 31.10.02)

7 years
s 61M(1)

NPP: 2 years and 3 months (6.11.09 - 5.2.12); balance of 9 months to expire on 5.11.12

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 IS v R

Details

AGLC: IS v R [2011] NSWCCA 142
Case: [2011] NSWCCA 142
Decision Date: 06 July 2011

CaseChat Overview and Summary

The appeal involved the sentencing of the defendant, IS, who had been convicted of sexual assault and indecent assault against his daughter. The case was heard in the court of appeal, which considered whether the sentence imposed by the trial court was appropriate and in line with legal standards.

The legal issues addressed by the court included whether the trial judge appropriately considered the statutory sentencing ratio in determining the sentence, and whether any special circumstances existed that warranted a departure from this ratio. The court also needed to determine if the non-parole period was correctly calculated according to the statutory guidelines.

In its decision, the court found that while the trial judge had considered the statutory ratio, the sentence imposed was erroneous as it extended the non-parole period beyond what was permitted by the statutory guidelines. The court concluded that there were no special circumstances that would justify a departure from the statutory ratio. Consequently, the court quashed the sentence and ordered a resentencing by the trial court, ensuring that the new sentence adhered to the statutory ratio and correctly calculated the non-parole period.

Orders