LA v R - [2013] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LA v R [2013] NSWCCA 146
Hearing dates: Wednesday 5 June 2013
Decision date: 27 June 2013
Before: Beazley P at [1]
Hidden J at [2]
Fullerton J at [23]
Decision:
Leave to appeal granted, appeal dismissed

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - seven counts of sexual intercourse with a child between the ages of 14 and 16 - whether finding of fact by judge offended De Simoni principle - whether sentences for individual counts appropriate - whether aggregate sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Cases Cited: - The Queen v De Simoni (1981) 147 CLR 383
- Pearce v The Queen [1998] HCA 57, 194 CLR 610
- Johnson v The Queen [2004] HCA 15, 78 ALJR 616
Category: Principal judgment
Parties: LA (applicant)
Regina (Crown)
Representation: Counsel:
PD Rosser QC (applicant)
S Dowling (Crown)
Solicitors:
Virginia Kate Taylor (applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/87280
Publication restriction: Yes
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-06-21 00:00:00

Before:

Maiden DCJ

File Number(s):

2011/87280

Judgment

BEAZLEY P: I agree with Hidden J.

HIDDEN J: The applicant pleaded guilty in the District Court to seven counts of sexual intercourse with a child between the ages of 14 and 16, an offence under s 66C(3) of the Crimes Act 1900 which carries a maximum sentence of 10 years imprisonment. On 21 June 2012 he was sentenced to a series of partly cumulative terms of imprisonment, commencing on 21 February 2012 so as to take account of a discrete period of pre-sentence custody. The sentences were as follows:

On counts 1 and 2: concurrent fixed terms of imprisonment for 1 year, commencing on 21 February 2012;

Counts 3 - 5: concurrent fixed terms of imprisonment for 2 years, commencing on 21 February 2013;

Counts 6 - 7: concurrent terms of imprisonment for 3 years, with a non-parole period of 1 year, commencing on 21 February 2014.

The aggregate sentence was imprisonment for 5 years with a non-parole period of 3 years. The applicant seeks leave to appeal against those sentences.

Facts

The victim of the offences was a 15 year old girl, who was the sister of the applicant's partner. The applicant was aged between 28 and 29 years at the time of the offences. The victim moved in to the home of the applicant and his partner late in 2008, and the offences occurred throughout 2009.

An agreed statement of facts recorded that the first two counts arose from an occasion early in 2009, when the applicant entered her bedroom, woke her, penetrated her digitally and had penile/vaginal intercourse with her. The third, fourth and fifth counts relate to an occasion in May 2009 when, in the bedroom occupied by the applicant and his partner, he penetrated her digitally, performed cunnilingus upon her and again had penile/vaginal intercourse with her. The sixth 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 LA v R

Details

AGLC: La v The Queen [2013] NSWCCA 146
Case: [2013] NSWCCA 146
Decision Date: 27 June 2013

CaseChat Overview and Summary

The case of LA v R involved an appeal by the accused against their sentence imposed by the Supreme Court. The appellant had been found guilty of seven counts of sexual intercourse with a child aged between 14 and 16 years. The appellant sought leave to appeal against the sentence on the grounds that the finding of fact by the trial judge contravened the principle set out in De Simoni, and that the sentences for individual counts were inappropriate, as well as the aggregate sentence being manifestly excessive. The court was required to determine whether the trial judge's finding of fact contravened the De Simoni principle, whether the sentences for individual counts were appropriate, and whether the aggregate sentence was manifestly excessive.

The court found that the finding of fact by the trial judge did not contravene the De Simoni principle, as the judge had properly considered the evidence before them and made findings of fact based on that evidence. The court also found that the sentences for individual counts were appropriate, as they reflected the seriousness of the offences and the appellant's culpability. The court found that the aggregate sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for such offences. The court held that the appellant had not demonstrated that the sentence imposed was plainly and palpably outside the range of sentences that could be lawfully imposed.

The court refused the appellant's application for leave to appeal against their sentence. The court found that the trial judge had properly exercised their discretion in imposing the sentence, and that there was no basis for the court to interfere with the sentence. The court noted that the appellant's sentence was within the range of sentences that could be imposed for such offences, and that the court was not satisfied that the sentence was manifestly excessive. The court held that the appellant had not demonstrated that the sentence imposed was plainly and palpably outside the range of sentences that could be lawfully imposed. The court dismissed the application for leave to appeal against sentence.

Orders