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Mottram v R

Mottram v R

Case [2009] NSWCCA 210 25 August 2009

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New South Wales
Court of Criminal Appeal

CITATION: Mottram v Regina [2009] NSWCCA 210

HEARING DATE(S): 17 August 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: Macfarlan JA at 1; Grove J at 2; Hoeben J at 3

DECISION: Leave to appeal against sentence is granted.
The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - sexual assaults occurring 20-30 years before sentences imposed - application of sentencing practices then current - whether non-parole period should be adjusted downwards to have regard to those practices - whether some other sentence warranted in law - (s6(3) Criminal Appeal Act 1912).

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Parole of Prisoners Act 1966
Probation and Parole Act 1983

CATEGORY: Principal judgment

CASES CITED: AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32
Baxter v R [2007] NSWCCA 237
Bradbury v R [2008] NSWCCA 93 at [36]
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
CPW v R [2009] NSWCCA 105
Featherstone v R [2008] NSWCCA 71
GRD v R [2009] NSWCCA 149
MJL v R [2007] NSWCCA 261
Pearce v The Queen [1998] 194 CLR 610 at 624
PH v R [2009] NSWCCA 161
R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

PARTIES: William Albert Mottram - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2007/10507008

COUNSEL: A Francis - Applicant
D Arnott SC/S Dowling - Respondent Crown

SOLICITORS: SE O'Connor, Solicitor for Legal Aid - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/10507

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 5 March 2008

2007/10507008

HOEBEN J
25 August 2009

William Albert MOTTRAM v REGINA

Judgment

1 MACFARLAN JA: I agree with Hoeben J.

2 GROVE J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 5 March 2008 the applicant was sentenced in respect of the following charges by Garling DCJ:

(1) Between 1972/3 assault with attempted carnal knowledge of KG being under the age of 10 years contrary to s 68 Crimes Act 1900 (maximum penalty imprisonment for 14 years).

(2) Between 1973/4 assault with attempted carnal knowledge of KG being under the age of 10 years contrary to s 68 Crimes Act 1900 (maximum penalty imprisonment for 14 years).

(3) Between 1974/5 indecent assault of KG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

(4) Between 1973/6 indecent assault of KG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

(5) Between 1980/1 indecent assault of HG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

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 Mottram v R

Details

AGLC: Mottram v R [2009] NSWCCA 210
Case: [2009] NSWCCA 210
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the matter of Mottram versus The Queen, the High Court of Australia was presented with an appeal against sentence for an individual convicted of multiple counts of sexual assault. The accused, having been found guilty of offences occurring over two to three decades prior to the sentencing, argued that the severity of the imposed sentences was disproportionate when considering the sentencing practices of the period in which the offences were committed. The primary issue before the court was whether the non-parole period should be adjusted downwards to reflect the sentencing practices of the time the offences were committed and, if so, whether an alternative sentence was warranted.

The court considered whether the original sentencing judge had appropriately applied the relevant sentencing principles, particularly whether the punishment was proportionate to the gravity of the crimes. It was noted that the offences were of a serious nature, involving multiple victims and acts of a deeply invasive character. The court also examined whether the length of the non-parole periods, which were set at the upper end of the sentencing scale, could be seen as disproportionate when viewed through the lens of the sentencing practices that were in effect at the time of the offences. The court found that while the offences were undeniably grave, the original sentences did not adequately account for the sentencing practices that were current at the time the crimes were committed.

In its judgement, the court held that the non-parole periods imposed were excessive, particularly when compared to the sentencing norms of the period during which the offences occurred. It was determined that a reduction in the non-parole periods was warranted to reflect the sentencing practices of the time. The court then proceeded to re-sentence the appellant, taking into account all relevant factors, including the nature and circumstances of the offences, the need for deterrence, and the protection of the community. The final orders included a reduction in the non-parole periods, with the modified sentences reflecting a more appropriate proportionality in line with historical sentencing practices.

Orders