PC v R

Case [2022] NSWCCA 107 27 May 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PC v R [2022] NSWCCA 107
Hearing dates: 4 May 2022
Date of orders: 27 May 2022
Decision date: 27 May 2022
Before: The Court (Bell CJ, Kirk JA, Price J)
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence – child sexual assault – whether error in taking into account abuse of a position of trust where for offences under s 66C(2) the victim being under the authority of the offender was an element of the offence – whether error in failing to explain abuse of trust and abuse of authority – relationship between father and daughter – where reasons provided by judge for finding breach of trust as an aggravating factor – whether sentence manifestly excessive – need for general deterrence in child sexual assault

Legislation Cited:
Crimes Act 1900 (NSW), ss 61H(2), 61M(2), 61O(1), 66A(1), 66C(2), 66C(5)(d)
Crimes (Sentencing Procedure) Act 1999 (NSW),
ss 21A(2), 21A(2)(k)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Beavis v R [2018] NSWCCA 248
Franklin v R [2016] NSWCCA 319
Griffin v R [2018] NSWCCA 259
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MRW v R [2011] NSWCCA 260
Parker v R [2021] NSWCCA 175
Pym v R [2014] NSWCCA 182
R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
Vaiusu v R [2017] NSWCCA 71
Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Texts Cited:
Nil

Category: Principal judgment
Parties: PC (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/12551
Publication restriction: A non-publication order was made in relation to anything that might identify the victim including the identity of the applicant
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

04 December 2020

Before:

Baly SC DCJ

File Number(s):

2020/12551

HEADNOTE

[This headnote is not to be read as part of the judgment]

PC (‘the applicant’) pleaded guilty to two counts of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW); four counts of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years in circumstances of aggravation contrary to s 66C(2) of the Crimes Act; and one count of indecent assault on a person aged under 16 years contrary to s 61M(2) of the Crimes Act.

Seven charges were also placed on a Form 1, which were: five charges of sexual intercourse with…

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 PC v R

Details

AGLC: PC v R [2022] NSWCCA 107
Case: [2022] NSWCCA 107
Decision Date: 27 May 2022

CaseChat Overview and Summary

The case of PC v R was heard in the Court of Appeal, with the appellant challenging the sentence imposed for a series of child sexual assault offences. The respondent was the Crown, and the trial court had imposed a substantial prison sentence. The appellant contended that the trial judge erred in several respects, including by taking into account the abuse of a position of trust where the victim being under the authority of the offender was an element of the offence. The appellant also argued that the trial judge failed to adequately explain the relevance of the abuse of trust and abuse of authority in sentencing and that the sentence was manifestly excessive.

The court examined whether the trial judge erred in considering the abuse of a position of trust as an aggravating factor, given that the victim's status as being under the authority of the offender was already an element of the offence. The court noted that the trial judge had provided reasons for finding the breach of trust as an aggravating factor, which was relevant to the sentencing process. The court found that the trial judge had correctly identified the breach of trust as an aggravating factor and that this was not an error. The court also considered whether the sentence was manifestly excessive and noted the need for general deterrence in cases of child sexual assault. The court found that the sentence was not manifestly excessive and was appropriate in the circumstances.

The appeal was dismissed. The trial judge's sentencing approach was upheld, and the original sentence was affirmed. The court emphasised the importance of considering the specific aggravating factors in child sexual assault cases, including the breach of trust, and the need for appropriate deterrence in such cases. The appellant's appeal was therefore unsuccessful, and the original sentence stood.

Orders