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Maxwell v R

Maxwell v R

Case [2020] NSWCCA 94 8 May 2020

Appeal

Sentencing

Child Sex Offences

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maxwell v R [2020] NSWCCA 94
Hearing dates: 20 April 2020
Date of orders: 08 May 2020
Decision date: 08 May 2020
Before: Johnson J at [1]
Adamson J at [149]
Bellew J at [150]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: APPEAL – sentence – child sex offences – applicant sexually abused his daughter – 17 offences over nine-year period – aggregate sentence of imprisonment of 14 years with a non-parole period of 10 years and six months – conceded error in specification of standard non-parole periods – Court to exercise sentencing discretion to determine whether lesser sentence warranted – objective gravity of offences – victim aged between five and 15 years during period of offending – lesser sentence not warranted – appeal dismissed
Legislation Cited: Courts Legislation Amendment (Broadcasting Judgments) Act 2014
Crimes (Sentencing Procedure) Amendment Act 2007
Crimes Act 1900
Crimes Legislation Amendment (Child Sexual Offences) Act 2015
Criminal Appeal Act 1912
District Court Act 1973
Supreme Court Act 1970
Surveillance Devices Act 2007
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
BT v R [2010] NSWCCA 267
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Chin-Charles v R; Cullen v R [2020] 1 Cr App R (S) 6; [2019] EWCA Crim 1140
Corby v R [2010] NSWCCA 146
DAC v R [2006] NSWCCA 265
Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
He v R [2016] NSWCCA 220
House v The King (1936) 55 CLR 499; [1936] HCA 40
You v R [2020] NSWCCA 71
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
Potts v R [2017] NSWCCA 10
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Hamieh [2010] NSWCCA 189
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Mirzaee [2004] NSWCCA 315
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
R v Pham [2005] NSWCCA 94
R v Qin [2008] NSWCCA 189
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Van Ryn [2016] NSWCCA 1
R v Van Ryn (No. 3) [2016] NSWCCA 307
RO v R [2019] NSWCCA 183
Vaughan v R [2020] NSWCCA 3
ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132
Texts Cited: ---
Category: Principal judgment
Parties: George Maxwell (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Ms M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/335467
Publication restriction: ---
Decision under appeal

Court…

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 Maxwell v R

Details

AGLC: Maxwell v R [2020] NSWCCA 94
Case: [2020] NSWCCA 94
Decision Date: 08 May 2020

CaseChat Overview and Summary

Maxwell v R involved the appellant, who had sexually abused his daughter over a nine-year period, resulting in 17 offences. The case reached the court for the purpose of appealing the sentence imposed. The appellant had been sentenced to an aggregate term of imprisonment of 14 years, with a non-parole period of 10 years and six months. The appeal was based on the argument that there was an error in the specification of the standard non-parole periods, which needed to be corrected by the Court exercising its sentencing discretion to determine whether a lesser sentence was warranted.

The court was tasked with determining whether the objective gravity of the offences warranted a lesser sentence. The offences occurred over a significant period, during which the victim was aged between five and 15 years. The appellant's conduct was described as predatory, manipulative, and involving the use of force, threats, and manipulation. The court considered the impact of the abuse on the victim and the need for general deterrence and denunciation. Despite the concession of the error in the non-parole period, the court concluded that a lesser sentence was not warranted given the gravity of the offences.

The court found that the sentence imposed was appropriate, reflecting the severity of the crimes and the need to protect the community. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of recognising the long-term impact of such offences on the victim and the necessity of a robust response to deter future occurrences.

Orders