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Porter v R

Porter v R

Case [2019] NSWCCA 117 12 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Porter v R [2019] NSWCCA 117
Hearing dates: 1 May 2019
Decision date: 12 June 2019
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Davies J at [94]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIME — appeals — appeal against sentence – offences of sexual intercourse without consent with threatened and malicious infliction of actual bodily harm – offences committed in January 2002 – offender not sentenced until 2018 – offender sentenced for similar offences committed in February 2001 and February 2002 – whether sentencing judge needs to consider likely head sentence if offender sentenced for all three offences at one time – artificial consideration where earlier sentences had expired – failure to give reasons in relation to totality, remorse, rehabilitation prospects and unlikelihood of re-offending – consideration of relevance of delay and totality in resentencing exercise – no lesser sentence warranted
Legislation Cited: Crimes Act 1900 (NSW) ss 61J(1), 86(1)
Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(5AA), 47
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dimian v R [2016] NSWCCA 223
Imbornone v R [2017] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Fernando (1992) 76 A Crim R 58
R v Hall [2017] NSWCCA 313
R v Kay [2004] NSWCCA 130
R v Omar [2015] NSWCCA 67
R v Todd [1982] 2 NSWLR 517
WAP v R [2017] NSWCCA 212
Category: Principal judgment
Parties: Anthony Francis Porter (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr R Wilson (Applicant)
Mr G Newton (Crown)
Solicitors:
Aboriginal Legal Service
Solicitor for Public Prosecutions

File Number(s): 2015/269235
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 February 2018

Before:

Jeffreys DCJ

File Number(s):

2015/269235

HEADNOTE

[This headnote is not to be read as part of the judgment]
Mr Anthony Francis Porter (the applicant) was sentenced in respect of offences of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act1900 (NSW). The offences were committed against the same victim on the same occasion, namely late on the evening of 5-6 January 2002 in Griffith. The offences were reported at the time; although the applicant was not identified until DNA testing occurred in 2015. In February 2018, the applicant was sentenced to an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years.
Relevantly, the applicant had been convicted and sentenced for similar serious sexual offences on two other occasions in February 2001 and February 2002. His sentences for those offences expired in 2016.
The applicant sought leave to appeal in respect of 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.

Continue reading Porter v R

Details

AGLC: Porter v R [2019] NSWCCA 117
Case: [2019] NSWCCA 117
Decision Date: 12 June 2019

CaseChat Overview and Summary

The case of Porter v R involves an appeal against the sentence given to the appellant, Porter, who was convicted of sexual intercourse without consent with threatened and malicious infliction of actual bodily harm. The offences occurred in January 2002, but Porter was not sentenced until 2018. The appellant had already been sentenced for similar offences committed in February 2001 and February 2002. The appeal focused on whether the sentencing judge was required to consider a likely head sentence if Porter had been sentenced for all three offences simultaneously. The earlier sentences had expired, which made this consideration artificial. Additionally, the appeal examined the sentencing judge’s failure to provide reasons regarding the totality principle, the appellant’s remorse, his rehabilitation prospects, and the unlikelihood of re-offending. The Court of Appeal considered the relevance of the delay in sentencing and the principle of totality in the resentencing exercise, ultimately determining whether a lesser sentence was warranted.

The central legal issues in this appeal involved the sentencing process for multiple related offences committed by the same offender over a period of time. The key points of contention were whether the sentencing judge should have considered a hypothetical head sentence for all offences if they had been committed and sentenced concurrently, and if the delay in sentencing and the principle of totality warranted a lesser sentence. The appeal also raised questions about the adequacy of the sentencing judge’s reasoning and the need for justification regarding several sentencing considerations such as remorse, rehabilitation prospects, and the likelihood of re-offending.

The Court of Appeal held that the sentencing judge’s failure to consider a hypothetical head sentence for all offences was not a significant error, given the artificial nature of such a consideration due to the expiry of the earlier sentences. The Court acknowledged the relevance of the delay in sentencing and the principle of totality but concluded that these factors did not warrant a lesser sentence. The Court emphasised the importance of the sentencing judge providing clear reasons for the sentence imposed, particularly in relation to the totality principle, remorse, rehabilitation prospects, and the unlikelihood of re-offending. Ultimately, the Court found that the sentencing judge’s reasons were sufficient and that no lesser sentence was warranted.

The Court of Appeal upheld the original sentence imposed by the sentencing judge. The appeal was dismissed, and the sentence remained in place.

Orders