PICKEN v REGINA; REGINA v PICKEN [2007] NSWCCA 319
HEARING DATE(S):
22 October 2007
JUDGMENT DATE:
26 November 2007
JUDGMENT OF:
Mason P at 1; Hidden J at 150; Harrison J at 151
DECISION:
Appeal against conviction dismissed; Crown appeal against sentence dismissed
CATCHWORDS:
CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular grounds – objection and points not raised in court below – misdirections and non directions – during trial – in judge’s summing up – Criminal Appeal Rules, r 4 - CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular grounds – objection and points not raised in court below – misdirections and non directions – whether amounting to an absence of a fair trial – Criminal Appeal Rules, r 4 - CRIMINAL LAW – Appeal and new trial – appeal against sentence – appeal by Attorney-General or other Crown law officer – grounds for interference – whether sentence manifestly inadequate – sexual assault – where suspended sentence given – alleged undervaluing of degree of criminality – whether too much weight given to medical condition of offender – Crimes (Sentencing Procedure) Act 1999, s 12
Appellant: Willis & Bowring Crown: S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/11/0608
LOWER COURTJUDICIAL OFFICER:
McGUIRE ADCJ
LOWER COURT DATE OF DECISION:
23 March 2007
CCA 2007/2892 CCA 2007/3305
MASON P HIDDEN J HARRISON J
Monday 26 November 2007
Leighton Mark PICKEN v REGINA
REGINA v Leighton Mark PICKEN
Judgment
1 MASON P: An appeal against conviction and a Crown appeal against sentence were heard concurrently.
2 On 17 November 2006 Mr Picken (hereafter referred to as the appellant) was found guilty of two counts of aggravated sexual intercourse without consent (Crimes Act 1900, s61J) and one count of aggravated indecent assault (Crimes Act, s61M). In each instance the circumstance of aggravation was that the complainant was under 16 years of age.
3 The appellant, aged 20 at 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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AGLC
Picken v R [2007] NSWCCA 319
Case
[2007] NSWCCA 319
Decision Date
CaseChat Overview and Summary
The case of Picken v R involved an appeal against both conviction and sentence in the High Court of Australia. The appellant, Picken, was convicted of sexual assault and sentenced to a suspended sentence. The respondent, the Crown, sought to appeal the adequacy of the sentence, while Picken sought to appeal his conviction on the grounds of alleged misdirections during the summing up by the trial judge, which were not objected to at the trial. The central legal issues in this case were whether the alleged misdirections by the trial judge amounted to a failure to ensure a fair trial and whether the sentence was manifestly inadequate.
The court held that the misdirections in the summing up by the trial judge did not constitute a failure to ensure a fair trial. The court found that the judge's summing up, when viewed as a whole, did not misdirect the jury. The court further determined that the points raised by Picken were not sufficient to amount to a miscarriage of justice. Regarding the sentence, the court examined whether the sentence was manifestly inadequate. The court noted that the Crimes (Sentencing Procedure) Act 1999, section 12, provides for the imposition of a suspended sentence in appropriate circumstances. The court found that the sentence was not manifestly inadequate, as it took into account the offender's medical condition and other relevant factors. The court held that the sentence was within the range of sentences that could be considered appropriate in the circumstances.
In conclusion, the High Court dismissed the appeal against conviction and sentence. The court upheld the conviction and the sentence as imposed by the trial judge, finding that there were no grounds for interference under the Criminal Appeal Rules or the Crimes (Sentencing Procedure) Act 1999. The judgment confirmed the trial judge's discretion in sentencing and the importance of considering all relevant factors in the sentencing process.