Leeming JA at [1]; Button J at [103]; RS Hulme AJ at [104]
Decision:
(1) Appeal against conviction dismissed. (2) Grant leave to appeal against sentence, and allow the appeal. (3) Quash the sentences imposed on the appellant by Knox DCJ on 10 December 2013. (4) Sentence the appellant on Count 3 to imprisonment for a term of 8 months. (5) Suspend execution of the sentence referred to in order (4) for 8 months. (6) Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 8 months. (7) Sentence the appellant on Count 1 to imprisonment for a term of 14 months. (8) Suspend execution of the sentence referred to in order (7) for 14 months. (9) Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 14 months.
Catchwords:
CRIMINAL LAW - appeal from conviction - sexual assault - Crown case turned on testimonial evidence of complainant, which was denied by accused - jury convicted on 2 of 3 counts - whether verdicts inconsistent
CRIMINAL LAW - appeal against sentence - whether error in not taking into account assistance to authorities - no error where no evidence as to value of assistance - whether error in finding of "breach of trust" as aggravating factor - consideration of Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k) - whether error in assessing objective seriousness - whether sentence manifestly excessive - where sentencing judge had regard to Local Court sentencing statistics and said custodial sentence imposed was consistent within range - consideration of use of sentencing statistics
[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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AGLC
Peiris v R [2014] NSWCCA 58
Case
[2014] NSWCCA 58
Decision Date
CaseChat Overview and Summary
In Peiris v R, the appellant faced charges related to sexual assault, with the Crown's case relying on the testimonial evidence of the complainant. The appellant denied the allegations, resulting in a jury convicting him on two out of three counts. The appellant's appeal against his conviction and sentence was heard by the court. The primary issue for determination was whether the verdicts were inconsistent. Additionally, the court examined whether there were any errors in the assessment of the appellant's assistance to the authorities, the finding of a "breach of trust" as an aggravating factor, the assessment of the objective seriousness of the offence, and whether the sentence was manifestly excessive.
The court found that there was no inconsistency in the verdicts as the jury could have reasonably believed the complainant's evidence on two counts but not on the third. Concerning the assistance to authorities, the court held that there was no error in not taking it into account since there was no evidence to determine the value of the assistance provided. Regarding the "breach of trust" factor, the court considered the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k) and found no error in the sentencing judge's consideration of this factor. The court also determined that there was no error in the assessment of the objective seriousness of the offence, and the sentence was not manifestly excessive. The sentencing judge had taken into account the Local Court sentencing statistics and stated that the imposed custodial sentence was consistent within the range.
The final orders of the court were to dismiss the appeal against conviction and sentence, upholding the decision of the primary judge. The court found that the verdicts were consistent, there were no errors in the assessment of the appellant's assistance to authorities, the finding of a "breach of trust" as an aggravating factor, the assessment of the objective seriousness of the offence, and the sentence was not manifestly excessive.