COUNSEL: P G Ingram (Crown) P M Strickland (Appellant)
SOLICITORS: S E O'Connor (Crown) D J Humphries (Appellant)
CATCHWORDS: Manslaughter Aggravated sexual assualt Sentencing Whether sentence manifestly excessive Whether special circumstances Relevance of statistical information Non parole period Youth of offender Mitigating factors General deterrence Rehabilitation Whether applicant punished twice for the same criminal conduct Partially accumulated sentences
DECISION: Leave to appeal granted Appeal dismissed
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
CCA 60495/01
BEAZLEY JA BELL J SMART AJA
Monday, 26 August 2002
REGINA v ADAMSON
FACTS
The appellant pleaded guilty to one count of manslaughter and two counts of aggravated sexual assault. The appellant was 19 years old when he committed the offences. The offences occurred virtually simultaneously, the victim having been asphyxiated during the courts of the sexual assaults as a result of the appellant placing his hand over the victim’s mouth and nose to stop her calling for help. However, these offences were not premeditated.
In respect of each offence of aggravated sexual assault Howie J imposed a fixed term of 8 years to commence on 7 January 2000 and to expire on 6 January 2008. In respect of the manslaughter offence, he imposed a sentence of 11 years with a non-parole period of 7 ½ years to commence on 7 January 2003.
The applicant sought leave to appeal against sentence on 3 bases: first, that the sentence imposed in respect of each offence was manifestly excessive; secondly, that the overall sentence and non-parole period was manifestly excessive; and thirdly, that his Honour erred in failing to find special circumstances.
HELD per Beazley JA (Bell J agreeing)
(i) The sentences imposed in respect of each offence are not manifestly excessive.
(ii) The overall effect of the sentences was such that it is not manifestly excessive.
(iii) The trial judge gave appropriate weight to all relevant circumstances, including the youth of the offender.
(iv) The trial judge did not err in not finding special circumstances.
(v) Discussion as the relevance of statistical information.
HELD per Smart AJ dissenting
(i) Although the sentence imposed in respect of each offence was not manifestly excessive the overall sentence was.
(ii) The correct length of the sentences in totality is 12 ½ years after taking into account the gravity of the offences, the applicant’s plea of guilty, his attempts to revive the deceased and his youth. The sentence for manslaughter should commence from 7 June 2001.
(iii) The trial judge did not err in not finding special circumstances. Considering the gravity of the offence,…
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 Adamson
Sign in free to access the full text
Details
AGLC
R v Adamson [2002] NSWCCA 349
Case
[2002] NSWCCA 349
Decision Date
CaseChat Overview and Summary
The applicant appealed against his sentence in the Supreme Court of Victoria. The applicant was found guilty of two counts of aggravated sexual assault and one count of manslaughter. The applicant's Honour sentenced him to a total of 14 years imprisonment, with a non-parole period of 10½ years. The applicant argued that the sentence was manifestly excessive, that there were no special circumstances that warranted such a sentence, and that the sentencing judge had failed to consider relevant mitigating factors. The applicant also argued that he had been punished twice for the same criminal conduct due to the partially accumulated sentences.
The court had to decide whether the sentence was manifestly excessive, whether there were special circumstances that warranted such a severe sentence, whether the sentencing judge had failed to consider relevant mitigating factors, and whether the applicant had been punished twice for the same criminal conduct. The court also had to consider the relevance of statistical information, the non-parole period, the youth of the offender, and general deterrence and rehabilitation.
The court held that the sentence was not manifestly excessive, and that there were special circumstances that warranted such a severe sentence. The court found that the sentencing judge had considered all relevant mitigating factors, and that the applicant had not been punished twice for the same criminal conduct. The court also held that statistical information was not relevant in determining the appropriate sentence, and that the non-parole period was appropriate given the seriousness of the offences. The court found that the youth of the offender was a mitigating factor, but that it did not outweigh the seriousness of the offences. The court held that general deterrence and rehabilitation were relevant considerations, but that they did not warrant a reduction in the sentence.
The applicant's appeal against sentence was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant pleaded guilty before his Honour to all three counts. His Honour sentenced the applicant to a total sentence of 14 years with a non-parole period of 10½ years. The sentence was structured as follows:(i) in respect of each offence of aggravated sexual intercourse he imposed a fixed term of 8 years to commence on 7 January 2000 and expire on 6 January 2008; and(ii) in respect of the manslaughter offence, he imposed a sentence of 11 years with a non-parole period of 7½ years to commence on 7 January 2003.Facts There is no challenge on the application for leave to appeal to the facts upon which his Honour sentenced the applicant. In summary those facts were as follows. On 31 October 1999, the applicant attended a party at a home in Putney. He did not know the host but was ‘invited’ by one of the guests who had gone to the local hotel, where the applicant was with some friends, to purchase some alcohol. The applicant arrived at the party at about 11.30pm. The deceased had arrived at the party at about 9.30 pm with a female friend, and, it appears, drank fairly heavily during the evening. She was described as being well affected by alcohol at different times during the evening, although it was possible that because of a medical condition, she was more intoxicated than might otherwise have been expected from the amount of alcohol she drank. At about 3am the deceased and the female friend decided to stay the night at the premises because the deceased did not want to drive home and felt she might be ill if she went home in a taxi. The deceased and her friend went to an upstairs bedroom with another male friend. The deceased fell asleep and the other two friends who had been talking left the room. The male friend checked on the deceased several times over the next hour as the female friend had expressed concern for the deceased because of her state of sobriety. On each occasion he went to the room, the deceased was asleep. On the last occasion he checked he again observed the deceased to be asleep. On this occasion however, there was a man lying on the bed beside the deceased and he also appeared to be asleep. Shortly before 6am the host and a friend entered the bedroom in search of one of the other guests and observed the applicant and another person (who was clearly the deceased) on the floor next to the bed. The applicant was on his hands and knees and was wearing only his underpants. He was leaning over the person and appeared surprised to see them. Assuming that the applicant was involved, or about to become involved, in sexual intercourse, the two men left the bedroom. Shortly after this incident, sometime between 6am and 6.30am, the deceased was observed by different people who entered the room, to be lying on her stomach on the floor beside the bed. At approximately 6.30am the applicant alerted others in the house that something was wrong with the deceased. The deceased by then was lying at the left side of the bed, face down, with her head to one side. She was very cold and did not appear to have a pulse. An ambulance was called and the applicant and another person commenced an attempt to resuscitate her. The applicant was quite agitated, swearing and urging the deceased to wake up. When the attempts at resuscitation did not appear to be succeeding, the applicant lifted the deceased and carried her outside to the front of the house. He and others again attempted resuscitation. The applicant continued to be highly agitated and was still swearing and yelling when paramedics arrived.