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Montero v R

Montero v R

Case [2013] NSWCCA 214 13 September 2013

Criminal Liability

Aggravated & Exemplary Damages

Limitation Periods

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Montero v R [2013] NSWCCA 214
Hearing dates: 6 August 2013
Decision date: 13 September 2013
Before: Leeming JA at [1]
R A Hulme J at [9]
Button J at [66]
Decision:
Extension of time to file application for leave to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - indecent assault and aggravated sexual assault - offences committed in home of appellant while victim a guest - sentencing judge considered the location of crime at a 'home' as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - entitlement of victim to safety and security - circumstances capable of making offence more serious - no lesser sentence warranted - application for leave to appeal out of time - extension of time refused
Legislation Cited: Community Protection Act 1994
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
Criminal Appeal Act 1912 (NSW)
Poisons Act 1966
Cases Cited: Arja v R [2010] NSWCCA 190
Butler v R [2012] NSWCCA 23
Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478
DJM v R [2013] NSWCCA 101
DS v R [2012] NSWCCA 159
Edwards v R [2009] NSWCCA 199
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
Ingham v R [2011] NSWCCA 88
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
NLR v R [2011] NSWCCA 246
OH Hyunwook v R [2010] NSWCCA 148
R v BIP [2011] NSWCCA 224
R v Gazi Comert [2004] NSWCCA 125
R v Gregory [2002] NSWCCA 199
R v Knight [1998] 1 NZLR 583
R v Lawrence [1980] 1 NSWLR 122
R v Melbom [2013] NSWCCA 210
R v MH [2011] NSWCCA 230
R v Ramsden [1972] Crim LR 547
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Reg v Unger [1977] 2 NSWLR 990
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73
State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737
Category: Principal judgment
Parties: Andres Montero (Applicant)
Regina (Crown)
Representation: Counsel:
Mr G Wendler (Applicant)
Ms H Wilson (Respondent)
Solicitors:
John Hertz & Associates
Solicitor for Public Prosecutions

File Number(s): 2008/14219
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-10-30 00:00:00

Before:

O'Connor DCJ

File Number(s):

2008/14219

Judgment

LEEMING JA: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with him that ground 1, the alleged non-compliance with Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, lacks merit, and that any error as alleged in ground 2 in the application of s 21A(2)(eb) by reason of the assaults having taken place in the home of the applicant,…

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 Montero v R

Details

AGLC: Montero v R [2013] NSWCCA 214
Case: [2013] NSWCCA 214
Decision Date: 13 September 2013

CaseChat Overview and Summary

In the matter of Montero versus the Crown, the appellant contested the severity of his sentence imposed for the crimes of indecent assault and aggravated sexual assault. The offences were perpetrated against a guest in the appellant's own home. The Crown Court of New South Wales was tasked with determining whether the sentencing judge had erred in considering the location of the crime at a 'home' as an aggravating factor. The appellant sought to appeal the sentence on the grounds that the sentencing judge should not have factored the location of the crime into the severity of the sentence.

The legal issues revolved around the interpretation and application of section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. This section provides that certain circumstances, including the location of the crime, can be considered when determining the seriousness of the offence. The appellant argued that the home should not have been viewed as an aggravating factor, while the Crown maintained that the circumstances of the crime warranted the sentence imposed. The court needed to decide whether the sentencing judge correctly applied the law and whether the consideration of the home location as an aggravating factor was justified.

The court found that the sentencing judge was correct in considering the location of the crime as an aggravating feature. The inherent expectation of safety and security in one's home made the offences more serious. The court held that the victim's entitlement to feel safe in their own home was a legitimate factor to consider when assessing the gravity of the crime. Given the circumstances, the court concluded that no lesser sentence was warranted. Consequently, the application for leave to appeal out of time was refused, and the appellant's sentence remained as imposed by the sentencing judge.

Orders