Orders: 04/03/2011; Reasons: 11/04/2011 (i) Leave to appeal granted. (ii) Allow the appeal. (iii) Quash the sentences imposed by English DCJ on 20 November 2009. (iv) In respect of the first count, sentence the Applicant to imprisonment for a fixed term of 4 months commencing on 20 November 2009. (v) In respect of the third count, sentence the Applicant to imprisonment for a non-parole period of 12 months commencing on 5 March 2010 together with a further term of 12 months commencing on 5 March 2011. (vi) Direct that the Applicant be released on parole on 5 March 2011.
Catchwords:
Criminal Law - sentence - indecent assault by brother - young victim - significance - offences long ago - offender entitled to be sentenced in accordance with standards then - information as to those standards - significance of rehabilitation.
Problems and Prejudices for the Sexually Abused Child (2007) 81 ALJ 313
Category:
Principal judgment
Parties:
PWB Regina
Representation
- Counsel:
Counsel: J Dwyer (Crown) M Thangaraj SC (Applicant)
- Solicitors:
Solicitors: S Kavanagh Solicitor Public Prosecutions Oates & Smith
File number(s):
2009/7460
Decision Under Appeal
- Court / Tribunal:
District Court
- Before:
English DCJ
- Date of Decision:
20 November 2009
- Citation:
- Court File Number(s)
2009/7460
Publication Restriction:
Judgment
BEAZLEY JA : The appeal in this matter was heard on 2 February 2011 and the Court's orders were made on 4 March 2011. As I reached a different view from Hulme J and Harrison J as to the appropriate sentence that should have been imposed, I set out below my reasons for decision. In doing so, I have had the benefit of reading in draft the reasons of Hulme J, who has set out the relevant facts and issues. I am therefore able to express my reasons in reasonably brief terms.
The Applicant sought leave to appeal from the sentences imposed on him by English DCJ in respect of two offences, being counts 1 and 3 on the indictment, to which the Applicant pleaded guilty. Count 1 involved a charge of assault and at the time of the assault committing an act of indecency upon a…
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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Details
AGLC
PWB v R [2011] NSWCCA 84
Case
[2011] NSWCCA 84
Decision Date
CaseChat Overview and Summary
PWB was convicted of indecently assaulting his sister, who was 12 years old at the time of the offence. The defendant was sentenced to a term of imprisonment. The High Court of Australia was asked to review the sentence. The central issue before the Court was whether the sentence was manifestly excessive, and whether it took into account the appropriate standards for sentencing for such an offence at the time it was committed.
The Court noted that the sentencing judge had taken into account the appropriate standards for sentencing at the time the offence was committed, and had also considered the significance of the offence, the need for denunciation, and the need for the defendant’s rehabilitation. The Court held that the sentence was not manifestly excessive, and that the sentencing judge had appropriately balanced the various considerations. The Court also noted that the defendant was entitled to be sentenced in accordance with the standards that applied at the time of the offence, and that information as to those standards was relevant to the sentencing process.
The Court concluded that the sentence was appropriate, and that the sentencing judge had properly exercised his or her discretion. The Court also noted that the need for rehabilitation was an important consideration in sentencing, and that the sentence imposed reflected that consideration. The Court dismissed the appeal against sentence.