Phipps v R - [2008] NSWCCA 178

New South Wales
Court of Criminal Appeal

CITATION: Phipps v R [2008] NSWCCA 178

HEARING DATE(S): Wednesday 16 July 2008

JUDGMENT DATE:
11 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 16

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - sixteen counts of sexual assault - partial accumulation of sentence leading to aggregate sentence and effective non-parole period - finding of special circumstances reflected in individual sentences but not in aggregate sentence - no error

LEGISLATION CITED: Crimes Act 1900 (ss 61M(1), 66C(2))

PARTIES: Rodney Thomas Phipps (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/3133

COUNSEL: C Davenport SC (applicant)
D Arnott (Crown)

SOLICITORS: Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/41/0189

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 14/05/07

2007/3133

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J
Monday 11 August 2008

Rodney Phipps v Regina

Judgment

1 McCLELLAN CJ at CL:I agree with Hidden J.

2 HIDDEN J: The applicant, Rodney Thomas Phipps, was found guilty at trial in the District Court of 16 counts of sexual abuse of his step-daughter. There were eleven counts of aggravated sexual intercourse, an offence under s66C(2) of the Crimes Act which at the relevant time carried a maximum sentence of ten years imprisonment, and five counts of aggravated indecent assault, an offence under s61M(1) of the Act which, then as now, carried a maximum sentence of 7 years imprisonment. In each case the circumstance of aggravation was that the victim was under the applicant’s authority. He was sentenced to terms of imprisonment aggregating 14 years with a non-parole period of 11 years, and he seeks leave to appeal against those sentences. I shall explain shortly how that aggregate sentence was arrived at.

3 The offences were committed over a period between 1998 and 2001, when the victim was aged between twelve and fifteen years. There is no need to dwell on the details of them. It is sufficient to say that they embraced penile/vaginal intercourse, anal intercourse on one occasion, and various incidents of what the sentencing judge described as ”sexual touching”. The penile/vaginal intercourse was unprotected, but the applicant would withdraw before ejaculating. The offences were part of a wider pattern of abuse, which included cunnilingus, extending over a period in excess of three years.

4 On each of the aggravated sexual intercourse charges, he was sentenced to imprisonment for 9 years, comprising a non-parole period of 6 years and a balance of term of 3 years. On each of the aggravated indecent assault charges, he was sentenced to a fixed term of imprisonment for 4 years. The offences had occurred at four different addresses at which the applicant, the victim and her family were living over the relevant period. For the purpose of sentence, his Honour grouped the offences according to the address…

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 Phipps v R

Details

AGLC: Phipps v R [2008] NSWCCA 178
Case: [2008] NSWCCA 178
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of Phipps v R involved an applicant appealing against a sentence imposed by the Supreme Court of Victoria, which included sixteen counts of sexual assault. The applicant, Mr. Phipps, sought leave to appeal against the sentence, arguing that the aggregate sentence and the non-parole period imposed by the trial judge did not adequately reflect the special circumstances of the individual offences. The Supreme Court of Victoria, in its appellate jurisdiction, reviewed the application to determine whether the sentence was appropriate in the given circumstances.

The court considered whether the trial judge erred in the sentencing process by not explicitly identifying the special circumstances in the aggregate sentence and the non-parole period. The applicant's argument was that the trial judge's findings of special circumstances, which were reflected in the individual sentences, should also have been incorporated into the aggregate sentence and the non-parole period. The court was required to examine whether the aggregate sentence and the non-parole period adequately reflected the totality of the circumstances, including the special circumstances identified by the trial judge.

The court held that the trial judge did not commit an error in sentencing by not explicitly incorporating the findings of special circumstances into the aggregate sentence and the non-parole period. The court found that the aggregate sentence and the non-parole period were appropriate, taking into account all relevant factors, including the special circumstances. The court noted that the trial judge had adequately considered the special circumstances in determining the individual sentences and that these circumstances were appropriately reflected in the overall sentence. Consequently, the application for leave to appeal was dismissed.

Orders