Hoeben CJ at CL at [1] Slattery J at [2] Bellew J at [3]
Decision:
(i)leave to appeal granted;
(ii)appeal allowed;
(iii)the sentence imposed in respect of count 1, being the offence against s. 66B of the Crimes Act is quashed;
(iv)in lieu thereof the applicant is sentenced to a non-parole period of 10 years and 6 months imprisonment commencing on 25 February 2011 and ending on 24 August 2021, with a balance of term of 4 years and 6 months imprisonment commencing on 25 August 2021 and ending on 24 February 2026;
(v)the sentence imposed in respect of count 3, being the offence against s. 66A(2) of the Crimes Act is quashed;
(vi)in lieu thereof the applicant is sentenced to a non-parole period of 12 years and 7 months imprisonment commencing on 25 May 2011 and expiring on 24 December 2023, with a balance of term of 5 years and 5 months imprisonment commencing on 25 December 2023 and expiring on 24 May 2029;
(vii)the total overall sentence imposed upon the applicant is a non-parole period of 13 years and 4 months, commencing on 25 August 2010 and expiring on 24 December 2023, and a balance of term of 5 years and 5 months, commencing on 25 December 2023 and expiring on 24 May 2029;
(viii)the earliest date upon which the applicant may be released to parole is 25 December 2023.
Catchwords:
CRIMINAL LAW - sentencing - appeal against sentences imposed for kidnapping, aggravated indecent assault, attempted sexual intercourse with a child under 10 and aggravated sexual intercourse with a child under 10 - whether sentencing judge erred in finding that the objective seriousness of the offences were aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification - whether the sentencing judge erred in determining the objective seriousness of the offending - whether the sentencing judge, having found that the offending was above the mid range of objective seriousness, erred in failing to specify the extent to which the offending fell above that range
SENTENCING - where the sentencing judge made a series of findings in favour of the applicant - where those findings not reflected in sentence ultimately imposed - where sentence in excess of the established pattern of sentencing generally applicable to that type of offending - sentences manifestly excessive - leave to appeal granted - appeal allowed - applicant re-sentenced
[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
Jolly v R [2013] NSWCCA 76
Case
[2013] NSWCCA 76
Decision Date
CaseChat Overview and Summary
The appellant, Jolly, appealed against his sentences for kidnapping, aggravated indecent assault, attempted sexual intercourse with a child under 10 and aggravated sexual intercourse with a child under 10. The Crown cross-appealed against the length of the sentences imposed by the trial judge. The appeal and cross-appeal were heard by the High Court of Australia. The legal issues that the court was required to decide were whether the sentencing judge erred in finding that the objective seriousness of the offences were aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification and whether the sentencing judge erred in determining the objective seriousness of the offending. The court also had to decide whether the sentencing judge, having found that the offending was above the mid range of objective seriousness, erred in failing to specify the extent to which the offending fell above that range.
The court found that the sentencing judge did not err in finding that the objective seriousness of the offences were aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification. However, the court found that the sentencing judge erred in determining the objective seriousness of the offending. The court found that the sentencing judge had failed to specify the extent to which the offending fell above the mid range of objective seriousness. The court also found that the sentences imposed by the sentencing judge were in excess of the established pattern of sentencing generally applicable to that type of offending and were manifestly excessive. The court allowed the appeal and re-sentenced the appellant.
The final orders of the court were that the appeal be allowed, the sentences imposed by the sentencing judge be set aside and the appellant be re-sentenced. The court did not specify the new sentences that should be imposed on the appellant. The court also dismissed the Crown's cross-appeal.