JJ v R

Case [2020] NSWCCA 165 20 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JJ v R [2020] NSWCCA 165
Hearing dates: 26 June 2020
Date of orders: 20 July 2020
Decision date: 20 July 2020
Before: Hoeben CJ at CL; Fagan J; Cavanagh J
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – aggravated sexual intercourse without consent – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Aloniu v R [2017] NSWCCA 74
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Enriquez v R [2012] NSWCCA 60
FB v R [2011] NSWCCA 217
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen [2010] HCA 45
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Wright v R [2019] NSWCCA 134

Category: Principal judgment
Parties: JJ (applicant)
Regina (respondent)
Representation:
Counsel:
J Manuell SC (applicant)
D Patch (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor Director of Public Prosecutions (respondent)

File Number(s): 2017/272014
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

18 February 2019

Before:

Colefax SC DCJ

File Number(s):

2017/272014

Judgment

THE COURT: This is an application for leave to appeal against a sentence of imprisonment imposed by Judge Colefax SC in the District Court at Parramatta on 8 February 2019. In November 2018 the applicant was tried at Bega and found guilty by a jury on one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW), the circumstance of aggravation being that the victim was a girl of under 16 years: s 61J(2)(d). The offence was committed in October or November 2016 when the victim was 14. The maximum penalty is 20 years and the standard non-parole period is 10 years. The sentence imposed by his Honour was 12 years imprisonment with a non-parole period of 9 years. The sole ground of appeal is that the sentence is manifestly excessive.

Objective circumstances of the offence

The facts found by his Honour are as follows. The victim was born in 2002. By 2010 her natural father had separated from her mother and at some later date the father moved to Western Australia. The victim’s mother commenced a relationship with the applicant in about 2010 when the victim was approximately eight years old. In about 2011 or 2012 the applicant’s mother gave birth to a daughter, “C”, of whom the applicant is the father. In about April 2014 the applicant and the victim’s mother, together with the victim and C, moved to a house in the Bega district. In October of that year the victim went to Western Australia to live with her natural father. She remained there for 12 months. By the time she returned to New South Wales in late 2015 the relationship between the applicant…

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 JJ v R

Details

AGLC: JJ v The Queen [2020] NSWCCA 165
Case: [2020] NSWCCA 165
Decision Date: 20 July 2020

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, JJ, against the sentence imposed by the County Court for the offence of aggravated sexual intercourse without consent. JJ was convicted for this offence and sentenced to imprisonment. The Crown, represented by the Director of Public Prosecutions, sought to uphold the sentence. The court was required to determine whether the sentence was manifestly excessive or otherwise unjust.

The primary legal issue was whether the sentence imposed was manifestly excessive or unjust, taking into account all relevant factors including the gravity of the offence, the circumstances of the case, and the principles of sentencing. The court noted the severity of the offence and the need for deterrence and denunciation. It also considered the defendant's background, the impact on the victim, and the principle of proportionality. The court carefully weighed these factors to assess the sentence's appropriateness.

Upon review, the court concluded that the sentence was not manifestly excessive or unjust. The court found that it appropriately reflected the seriousness of the offence and considered all relevant sentencing principles. The court emphasised the need to balance the rights of the defendant with the need to protect society and support the victim. The appeal was dismissed, affirming the sentence imposed by the County Court.

The final orders of the court were to dismiss the appeal and uphold the original sentence imposed by the County Court. The defendant's appeal was unsuccessful, and the sentence remained in place.

Orders