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Ivimy v R

Ivimy v R

Case [2008] NSWCCA 25 19 February 2008

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New South Wales
Court of Criminal Appeal

CITATION: Ivimy v R [2008] NSWCCA 25
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 November 2007

JUDGMENT DATE:
19 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - aggravated indecent assault - circumstances of aggravation not pleaded - no double counting - sentences not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 61M, s 61M(1), s 61M(2),
s 61M3(c), s 61L
Crimes (Sentencing Procedure) Act 1999, s 21A(2),
s 21A(2)(k),

CATEGORY: Principal judgment

CASES CITED: Dougan v R (2006) 160 A Crim R 135
Ibbs v The Queen (1987) 163 CLR 447
R v King (2004) 150 A Crim R 409
R v McNamara [2005] NSWCCA 195
R v McNaughton (2006) 66 NSWLR 566
R v Way (2004) 60 NSWLR 168
R v Westerman [2004] NSWCCA 161
R v Wickham [2004] NSWCCA 193
Regina v AD [2005] NSWCCA 208
Regina v Pearson [2005] NSWCCA 116
R v Skaf [2005] NSWCCA 297

PARTIES: James Percy Ivimy
Regina

FILE NUMBER(S): CCA 2006/5197

COUNSEL: M Dennis (Applicant)
P Ingram (Respondent)

SOLICITORS: M Schneider Legal Aid (Applicant)
S Kavanagh Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0325

LOWER COURT JUDICIAL OFFICER: Bennett SC DCJ

LOWER COURT DATE OF DECISION: 25 October 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v James Percy Ivimy

IN THE COURT OF
CRIMINAL APPEAL
2006/5197

McCLELLAN CJ at CL

HALL J
PRICE J

19 February 2008

James Percy IVIMY v R

JUDGMENT

1 McCLELLAN CJ at CL: I agree with Price J.

2 HALL J: I agree with Price J.

3 PRICE J: James Percy Ivimy seeks leave to appeal against the sentences imposed upon him in the District Court at Parramatta on 25 October 2006. The applicant had pleaded guilty in the District Court on 15 May 2006 to an indictment which contained 13 counts namely eight counts contrary to s 61M(2) of the Crimes Act 1900, four counts contrary to s 61M(1) of the Crimes Act and one count contrary to s 61L of the Crimes Act. The Judge imposed a total aggregate sentence of 11 years commencing on 28 July 2006 and expiring on 27 July 2017 with an effective aggregate non-parole period of eight years and three months commencing on 28 July 2006 and expiring on 27 October 2014.

The offences

4 A statement of facts was tendered by the Crown. The facts were agreed with the exception of a number of passages which were not pressed. The facts may be conveniently summarised as follows:

The victim of all of the offences was born on 1 October 1984. She is the second of four children. When her father was admitted to hospital suffering from cancer, he befriended the applicant and introduced him to his wife and…

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 Ivimy v R

Details

AGLC: Ivimy v R [2008] NSWCCA 25
Case: [2008] NSWCCA 25
Decision Date: 19 February 2008

CaseChat Overview and Summary

The case of Ivimy v R involved the defendant, Ivimy, who was convicted of aggravated indecent assault. The appeal centred on the sentencing process, with the defendant arguing that the trial judge had considered circumstances of aggravation that were not pleaded, thereby imposing a manifestly excessive sentence. The appeal was heard by the High Court of Australia.

The primary legal issues the court needed to address were whether the trial judge had indeed considered unpleaded circumstances of aggravation in sentencing Ivimy and whether the sentences imposed were manifestly excessive. The court had to determine if there was any double counting in the sentencing process and whether the overall sentence was disproportionate to the crime committed.

The court held that there was no evidence that the trial judge considered unpleaded circumstances of aggravation. It was found that the sentences were not manifestly excessive and did not involve double counting. The court emphasised that the sentences were within the range of what could be considered appropriate for the crime of aggravated indecent assault. The reasoning of the court focused on the proper application of sentencing principles, ensuring that the sentence reflected the seriousness of the crime while adhering to legal standards and avoiding any improper considerations. The appeal was dismissed as the court found no basis to interfere with the trial judge's sentencing decisions.

Orders