McCartney v R - [2009] NSWCCA 244

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
McCartney v R [2009] NSWCCA 244

FILE NUMBER(S):
2008/8793

HEARING DATE(S):
16 September 2009

EX TEMPORE DATE:
16 September 2009

PARTIES:
Garret Hew McCARTNEY - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Spigelman CJ McClellan CJatCL Grove J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/8793

LOWER COURT JUDICIAL OFFICER:
Goldring DCJ

LOWER COURT DATE OF DECISION:
5 December 2008

COUNSEL:
N Carroll - Applicant
F Veltro - Respondent/Crown

SOLICITORS:
George Sten & Co - Applicant
Solicitor for Pubilc Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sexual intercourse without consent knowing the complainant is not consenting
Sentence
Late plea of guilty
Head sentence less than half prescribed standard non-parole period
Obvious assessment of offence in low range of culpability
Statement by complainant tendered without objection
No error in account given by judge to content

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 10 (2)

CATEGORY:
Principal judgment

CASES CITED:
Olbrich v The Queen (1999) 199 CLR 270
R v Slack [2004] NSWCCA 128
R v Thomas [2007] NSWCCA 269

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/8793
SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
16 September 2009

Garret Hew McCARTNEY

Judgment

SPIGELMAN CJ: I invite Grove J to deliver the first judgment.

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Goldring DCJ at Wagga Wagga District Court on 5 December 2008. The applicant pleaded guilty to a count in an indictment charging that on 9 December 2007 he had sexual intercourse with the complainant without her consent, knowing that she was not consenting.
The offence carries a prescribed maximum penalty of imprisonment for fourteen years and a standard non-parole period of seven years. His Honour sentenced the applicant to a total term of two years and six months, comprised of a non-parole period of one year and three years and a balance term of the same length.
An agreed statement of facts had been put before the court. The complainant and a female friend were partaking of drinks in a hotel in Echuca, a town located on the southern side of the Murray River in Victoria. She was introduced to the applicant by her friend at the hotel. Later in the evening, the complainant and her friend went to another hotel and then to a nightclub and at about 3am they went to a pizza restaurant. There she again encountered the applicant who, after the complainant’s friend left, invited her to come to “his place” for a few drinks. The complainant agreed, but told the applicant that she was not going to sleep with him.
They got into a hire car and were taken to the driveway of the applicant’s parents’ home which was some kilometres out of town near Moama on the New South Wales side of the river. At this point they left the…

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 McCartney v R

Details

AGLC: McCartney v R [2009] NSWCCA 244
Case: [2009] NSWCCA 244
Decision Date: 16 September 2009

CaseChat Overview and Summary

The appellant was convicted of one count of sexual intercourse without consent knowing the complainant was not consenting. The case was heard in the Court of Appeal. The appellant sought to appeal against the sentence imposed by the trial judge, which was a head sentence less than half of the prescribed standard non-parole period. The appeal was based on the argument that the sentence was manifestly inadequate. The appellant's counsel submitted that the trial judge had erred in assessing the offence in the low range of culpability, despite the gravity of the offence and the complainant's victim impact statement.

The court considered the principles of sentencing for sexual offences and the factors relevant to determining the appropriate sentence. The court noted that the trial judge had considered the circumstances of the offence, the appellant's background, and the complainant's victim impact statement. The court found that the trial judge had not erred in assessing the offence in the low range of culpability, given the appellant's late plea of guilty and the absence of any aggravating factors. The court also noted that the complainant's statement was tendered without objection and that the trial judge had given an appropriate account of its content.

The court held that the sentence imposed by the trial judge was not manifestly inadequate. The court noted that the sentence was within the range of sentences that could be imposed for the offence and that the trial judge had considered all relevant factors in determining the appropriate sentence. The court rejected the appellant's submission that the sentence was too lenient and found that there was no error in the trial judge's account of the complainant's statement. The appeal was dismissed.

The court did not make any orders in relation to the appeal. The conviction and sentence imposed by the trial judge remained in place.

Orders