R v ABS

Case [2005] NSWCCA 255 20 July 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v ABS [2005] NSWCCA 255

FILE NUMBER(S):
2005/811

HEARING DATE(S): 20/07/2005

JUDGMENT DATE: 20/07/2005

PARTIES:
Regina
ABS

JUDGMENT OF: Brownie AJA Buddin J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3326

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P Miller (Crown)
W Hadley (Respondent)

SOLICITORS:
S Kavanagh (Crown)
Direct access (Respondent)

CATCHWORDS:
Crown appeal - order pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 - serious offences of sexual misconduct upon offender's stepdaughter

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Pre-Trial Diversion of Offenders Act 1985 (NSW)

DECISION:
1. Appeal allowed. 2. The order imposed in the District Court is quashed. 3. The matter is remitted to the District Court to be relisted before the sentencing judge in order that the sentencing proceedings can be resolved as soon as is practicably possible.

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

2005/811
BROWNIE AJA
BUDDIN J
LATHAM J
WEDNESDAY 20 JULY 2005

REGINA v ABS

Judgment

BUDDIN J: This is an appeal brought by the Crown against an order made in the District Court on 13 April 2005, adjourning until 1 April 2006 the sentencing proceedings against the respondent pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999. Such an order is amenable to a Crown appeal by reason of the way in which the term “sentence” is defined in s 2 of the Criminal Appeal Act 1912.
The respondent, who is now aged 38, entered pleas of guilty in the Local Court to a number of charges of aggravated sexual intercourse without consent which were committed against his step-daughter. The offending conduct spanned the period between 1 January 2003 and 2 June 2004 at a time when the victim was aged between 12 and 14 years, she having been born on 18 January 1990.
The respondent adhered to his pleas of guilty when he appeared for sentence in the District Court. In all he stood for sentence in respect of a total of six charges of aggravated sexual intercourse without consent. He also requested that four additional charges of a similar nature, which appeared on a Form 1 document, be taken into account. Each offence attracts a maximum penalty, pursuant to s 61J(1) of the Crimes Act 1900, of 20 years imprisonment. Subsection (2) defines the “circumstances of aggravation” which the section contemplates. In the present case there were two such matters, namely that the victim was under the age of 16 at the time of the offences and also that she was under the authority of the respondent at the time. The aggravating factor alleged in the charges was the victim’s age but the court is also entitled to have regard to the last mentioned additional matter of aggravation in sentencing the respondent.
All of the offences occurred within the family home. It is unnecessary to recite the details of…

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 R v ABS

Details

AGLC: R v ABS [2005] NSWCCA 255
Case: [2005] NSWCCA 255
Decision Date: 20 July 2005

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentence imposed upon the appellant, who had been convicted of serious offences of sexual misconduct upon his stepdaughter. The case was heard in the Supreme Court of New South Wales. The appellant had been found guilty of multiple counts of sexual assault, including the use of violence and threats to coerce the victim into sexual acts. The trial judge had sentenced the appellant to a term of imprisonment, which the Crown deemed insufficient given the gravity of the offences.

The legal issues before the court involved the appropriate application of sentencing principles under the Crimes (Sentencing Procedure) Act 1999. The Crown argued that the sentence imposed did not adequately reflect the seriousness of the offences or provide sufficient deterrence and denunciation. The Crown further contended that the sentence failed to account for the appellant's history of violence and the vulnerability of the victim. The appellant, on the other hand, submitted that the sentence was appropriate and that the trial judge had correctly considered all relevant factors.

The court, in assessing the Crown's appeal, considered the principles of sentencing as outlined in the Crimes (Sentencing Procedure) Act 1999. It was held that the trial judge had erred in not adequately considering the appellant's history of violence and the impact of the offences on the victim. The court determined that the sentence imposed was manifestly inadequate and failed to provide sufficient punishment and deterrence. Consequently, the Crown's appeal was allowed, and the court ordered a new sentencing hearing before a different judge, with directions to impose a more appropriate sentence.

Orders