NT v Regina Non-publication order - [2007] NSWCCA 143

New South Wales
Court of Criminal Appeal

CITATION: NT v Regina Non-publication order [2007] NSWCCA 143

HEARING DATE(S): 24 April 2007

JUDGMENT DATE:
24 May 2007

JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 7

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - five counts aggravated indecent assault, two counts aggravated sexual assault, one count attempted aggravated sexual assault - offender step father of victim - victim 10 and 11 years of age at time of offences - whether overall sentence manifestly excessive taking into account applicant's early plea of guilty - whether sentencing outcome sufficiently reflective of the finding of exceptional features identified by sentencing judge

LEGISLATION CITED: Crimes Act 1900 - ss 61(M)(1), 61(J)(1),
Crimes (Sentencing Procedure) Act 1999 - ss 21A(1), (2) & (3)

CASES CITED: Pearce v The Queen (1988) 194 CLR 610
R v AD [2005] NSWCCA 208
R v BJW (2000) 112 A Crim R 1
R v Dent (Court of Criminal Appeal, 14 March 1991, unreported)
R v Doherty [2006] NSWCCA 133
R v Doolan [2006] NSWCCA 29
R v Kennedy [2000] NSWCCA 527
R v Hopkins [2004] NSWCCA 105
R v Reyes [2005] NSWCCA 218
R v Sangalang [2005] NSWCCA 171
R v Simpson (2001) 53 NSWLR 704
R v Slack [2004] NSWCCA 128
R v Thomson and Houlton (2000) 49 NSWLR 383
R v TV [2006] NSWCCA 174
R v Way (2004) 60 NSWLR 168

PARTIES: NT (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/696

COUNSEL: C Loukas (Applicant)
J Dwyer (Crown)

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0063; 06/61/0553

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 25 August 2006 (date of sentence)

- 18 -

2007/696

JAMES J
ROTHMAN J
HARRISON J

NT V REGINA

Judgment

1 JAMES J: I agree with Harrison J.

2 ROTHMAN J: I have had the advantage of reading the reasons for judgment of Harrison J and I generally agree with those reasons. I agree with the orders proposed by his Honour.

3 His Honour refers to the sentencing judge’s remarks on sentence and to the fact that authority reveals that cases of sexual assault upon young children are properly to be regarded as crimes of the utmost seriousness.

4 The relative seriousness of a criminal offence, including sexual assault, compared with other criminal offences is a matter determined by the legislature. It is an unenviable task imposed upon sentencing judges, even for those offences that are themselves repulsive, to determine where the particular offence committed fits within the range of criminality described by the offence in question. Thus, it is a sentencing judge’s task to determine whether a particular sexual assault is mid range, worst case or some other category within the range of sexual assaults covered by 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.

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Details

Case: [2007] NSWCCA 143
Decision Date: 24 May 2007

CaseChat Overview and Summary

The appellant, NT, was convicted of five counts of aggravated indecent assault, two counts of aggravated sexual assault, and one count of attempted aggravated sexual assault. The victim, who was 10 and 11 years old at the time of the offences, was the step-daughter of the appellant. NT was sentenced to a term of imprisonment with a non-parole period. NT appealed against the sentence on the basis that it was manifestly excessive, particularly considering the early plea of guilty, and that the sentence did not adequately reflect the exceptional features identified by the sentencing judge.

The court was required to determine whether the overall sentence imposed was manifestly excessive and whether it appropriately reflected the exceptional features identified by the sentencing judge. The court noted the severity of the offences, the vulnerability of the victim, and the appellant's position of trust as the victim's step-father. The court also considered the principle that a sentence should not be manifestly excessive and the need for the sentence to be reflective of the exceptional features of the case.

In assessing the appeal, the court found that while the sentence was severe, it was not manifestly excessive. The court recognised the gravity of the offences and the need for deterrence and denunciation. The court also found that the sentence adequately reflected the exceptional features of the case, including the appellant's early plea of guilty and the vulnerability of the victim. The appeal was dismissed, and the original sentence was upheld.

No specific orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders