NWL v Regina - [2006] NSWCCA 67

CITATION: NWL v Regina [2006] NSWCCA 67

HEARING DATE(S): 17/02/06

JUDGMENT DATE:
29 March 2006

JUDGMENT OF: James J at 1; Buddin J at 151; Hall J at 152

DECISION: Appeal against conviction on count 8 in the indictment allowed. Conviction and sentence on count 8 quashed. Verdict of acquittal on count 8. Otherwise appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence on counts 2-7, 9 and 11 allowed and the sentences imposed by the sentencing judge on those counts quashed but only for the purpose of imposing sentences complying with s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences. Otherwise appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – CONVICTION APPEAL - aggravated indecent assault - inciting a person above the age of sixteen years to commit an act of indecency – evidence and directions on issue of consent – whether the verdicts were unreasonable – SENTENCE – whether excessive – where sentencing judge failed to apply s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences - whether sentencing judge failed to give effect to the finding of special circumstances

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Rules

CASES CITED: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Bonora (1994) 35 NSWLR 74
R v Cramp [2004] NSWCCA 264
R v Habib [2005] NSWCCA 223

PARTIES: NWL v Regina

FILE NUMBER(S): CCA 2005/1848 CCAP

COUNSEL: PM Miller - Crown
J Doris - Appellant

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Murray Dribbus Sols - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0058

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

2005/1848

JAMES J
BUDDIN J
HALL J
Wednesday 29 March 2006

NWL v REGINA

Judgment

1 JAMES J: At a trial held in the District Court before his Honour Judge Phelan and a jury the appellant was found guilty of nine charges of aggravated indecent assault (counts 1-7, 9 and 11 in the indictment) and three charges of inciting a person above the age of sixteen years to commit an act of indecency (counts 8, 10 and 12 in the indictment). The only other charges in the indictment were alternative charges of less serious offences to some of the charges of aggravated indecent assault and, having regard to the jury’s verdicts of guilty on all of the charges of aggravated indecent assault, no verdicts were taken on the alternative charges.

2 The complainant on all of the charges was a male person born on 28 August 1978, who I will refer to simply as “the complainant”. It was alleged by the Crown that the offences charged had been committed at various times between October 1993 and December 1996.

3 Judge Phelan sentenced the appellant on count 1 to imprisonment for a fixed term of one year…

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 NWL v Regina

Details

AGLC: NWL v Regina [2006] NSWCCA 67
Case: [2006] NSWCCA 67
Decision Date: 29 March 2006

CaseChat Overview and Summary

The appellant was convicted of aggravated indecent assault and inciting a person above the age of sixteen years to commit an act of indecency. The appellant appealed the conviction and sentence, and the appeal was heard in the NSW Court of Criminal Appeal. The appellant argued that the verdicts were unreasonable, that the evidence did not establish that the victim did not consent to the sexual acts, and that the directions given to the jury on the issue of consent were inadequate. The appellant also argued that the sentence was excessive, and that the sentencing judge failed to apply s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences. The court held that the verdicts were not unreasonable, and that the evidence was sufficient to establish that the victim did not consent to the sexual acts. The court found that the directions given to the jury on the issue of consent were adequate, and that the jury was properly directed on the issue of consent. The court also found that the sentence was not excessive, and that the sentencing judge had given effect to the finding of special circumstances.

The court held that the evidence was sufficient to establish that the victim did not consent to the sexual acts, and that the verdicts were not unreasonable. The court found that the directions given to the jury on the issue of consent were adequate, and that the jury was properly directed on the issue of consent. The court held that the sentence was not excessive, and that the sentencing judge had given effect to the finding of special circumstances. The court also held that the sentencing judge had not failed to apply s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences, and that the sentence was appropriate in all the circumstances of the case. The court dismissed the appeal against conviction and sentence.

Orders