Lissock v The Queen - [2019] NSWCCA 282

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lissock v R [2019] NSWCCA 282
Hearing dates: 12 June 2019
Decision date: 29 November 2019
Before: Payne JA at [1]
Davies J at [2]
Button J at [16]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal against sentence upheld.
(3) The aggregate sentence imposed by Bright DCJ on 11 December 2017 is quashed.
(4) In substitution, the applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, with a non-parole period of 9 years 4 months, each to commence on 8 September 2017.
(5) The first date upon which the applicant appears to be eligible for release to parole pursuant to that sentence is 7 January 2027.

Catchwords: CRIME — Appeals — Appeal against sentence — Child sex offences — Applicant diagnosed with terminal illness after sentence imposed — Whether sentence manifestly excessive — Whether applicant to be re-sentenced based upon fresh evidence — Sentence not manifestly excessive — Fresh evidence admitted — Discussion of principles relevant to subsequent development of illness taken into account at time of sentence — Held by majority that applicant be re-sentenced — Lesser aggregate sentence imposed
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M and 66A
Crimes (Administration of Sentences) Act 1999 (NSW), ss 160, 160AD, and 270
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
Cases Cited: Anastasiou v R [2010] NSWCCA 100
Dinsdale v the Queen [2000] HCA 54; 202 CLR 321
Facer (a pseudonym) v R [2019] NSWCCA 180
Gibbons (a pseudonym) v R [2019] NSWCCA 150
GS v R [2016] NSWCCA 266
Iglesias v R [2006] NSWCCA 261
Merkel v R [2019] NSWCCA 212
RH v R [2019] NSWCCA 64
Russell v R [2018] NSWCCA 115
R v Jacobs [2001] NSWCCA 212
R v Jones (1993) 70 A Crim R 449
R v Vachalec [1981] 1 NSWLR 351
Category: Principal judgment
Parties: Stanley Lissock (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
N Carroll (Applicant)
K Jeffreys (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2003/11705
Publication restriction: Pseudonym adopted to protect the identity of a victim of child sexual assault
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 December 2017

Before:

Bright DCJ

File Number(s):

2003/11705

Judgment

PAYNE JA: I agree with Button J.
DAVIES J: I agree with Button J in relation to his Honour’s determination of ground 1 of the appeal and with his reasons for that determination.
In relation to ground 2 I agree with his Honour’s conclusion that the further medical evidence should be admitted and that the Court should consider the sentence imposed in the light of that medical evidence.
I respectfully disagree with his Honour’s conclusion that the sentence should be reduced by reason of the applicant’s medical condition. Since mine is a minority position, my reasons will be brief.
In R vJones (1993) 70 A Crim R…

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 Lissock v The Queen

Details

AGLC: Lissock v The Queen [2019] NSWCCA 282
Case: [2019] NSWCCA 282
Decision Date: 29 November 2019

CaseChat Overview and Summary

Lissock, the appellant, sought to appeal against the sentence imposed by the High Court of Australia for a series of child sex offences. The appeal focused on the imposition of the sentence, considering that the appellant had been diagnosed with a terminal illness subsequent to the sentencing. The key legal issues before the Court were whether the sentence was manifestly excessive and if the appellant should be re-sentenced based on the new evidence of his terminal illness.

The Court examined the principles relevant to assessing whether a sentence was manifestly excessive. It noted that the sentence must be assessed in the context of the circumstances existing at the time of sentencing. The Court held that the original sentence was not manifestly excessive, but acknowledged that the subsequent development of the appellant's illness was a material consideration that had not been taken into account at the time of sentencing. The Court recognised that the principles of mercy and rehabilitation, as well as the need to avoid excessive punishment, could warrant a re-sentencing in light of the new evidence.

In light of the new evidence, the Court determined that the appellant should be re-sentenced. The Court emphasised the importance of considering the principles of mercy and rehabilitation, particularly in cases where the offender's health had deteriorated significantly since the original sentencing. The Court ultimately imposed a lesser aggregate sentence, taking into account the appellant's terminal illness and the principles of justice and mercy.

The Court's decision to re-sentence the appellant was grounded in the recognition that the original sentence did not adequately consider the appellant's health condition at the time of sentencing. The Court's re-sentencing decision reflected a balanced approach, ensuring that the principles of justice, mercy, and rehabilitation were properly considered in light of the new evidence.

Orders