Bathurst CJ at [1]; Beazley P at [55]; Hall J at [57]; Bellew J at [58]; N Adams J at [78]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the offending occurred in circumstances where the applicant and the victim were in a relationship – Where the applicant lived at the premises where the offending occurred and was therefore not an intruder – Where the premises were also the home of the victim – Where the sentencing judge found that the offending was aggravated as a consequence of occurring in the home of the victim – No error on the part of the sentencing judge in reaching that finding
CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the sentencing judge found that the offending was aggravated by being committed in the presence of a child – Whether the sentencing judge erred in double counting that circumstance – No error on the part of the sentencing judge
[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
Jonson v R [2016] NSWCCA 286
Case
[2016] NSWCCA 286
Decision Date
CaseChat Overview and Summary
In Jonson v R, the applicant appealed his sentence, arguing that the sentencing judge erred in finding that his offending was aggravated by occurring in the home of the victim and in the presence of a child. The applicant was charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent. The victim and the applicant had been in a relationship, and the offending occurred at the premises where the applicant lived, which was also the home of the victim. The sentencing judge found that the offending was aggravated as it occurred in the home of the victim and in the presence of a child.
The court was required to determine whether the sentencing judge erred in finding that the offending was aggravated by the circumstances of where and when it occurred. The court needed to consider whether the sentencing judge made an error in concluding that the offending was aggravated by the presence of a child, potentially double counting that circumstance.
The court found that there was no error on the part of the sentencing judge in finding that the offending was aggravated by occurring in the home of the victim. The court noted that the offending was not committed by an intruder, and that the applicant lived at the premises where the offending occurred, which was also the home of the victim. The court held that the sentencing judge did not err in concluding that the offending was aggravated by occurring in the home of the victim. The court also found that there was no error in the sentencing judge's conclusion that the offending was aggravated by being committed in the presence of a child, and that there was no double counting of that circumstance.
The court dismissed the applicant's appeal and affirmed the sentence imposed by the sentencing judge.