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R v Cannon

R v Cannon

Case [2015] NSWDC 125 9 July 2015

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Cannon [2015] NSWDC 125
Decision date: 09 July 2015
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years

Catchwords: CRIMINAL LAW – sentence – sexual assault – offence committed in 1986 – relevant sentencing principles – legislative history; CRIMINAL LAW – sentence - totality
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Parole of Prisoners Act 1966 (NSW)
Probation and Parole Act 1983 (NSW)
Probation and Parole (Remissions) Amendment Act 1986 (NSW)
Probation and Parole (Serious Offences) Amendment Act 1987 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Betts v R [2015] NSWCCA 39
CPW v R [2009] NSWCCA 105; 195 A Crim R 149
Ewen v R [2015] NSWCCA 117
LJS v R [2015] NSWCCA 47
Magnuson v R [2013] NSWCCA 50
MD v R [2015] NSWCCA 37
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Close (1992) 65 A Crim R 55; 31 NSWLR 743
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481
R v Moffitt (1990) 49 A Crim R 20
R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704
R v Swan [2005] NSWCCA 252
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104
R v Wakefield [2010] NSWCCA 12
RL v R [2015] NSWCCA 106
SHR v R [2014] NSWCCA 94
Category: Sentence
Parties: Regina (Crown)
Kenneth Barry Cannon (Offender)
Representation:
Counsel:
M King (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2014/00060448
Publication restriction: Name of victim anonymised

SENTENCE

Mr Cannon pleaded guilty in the Local Court and was committed for sentence on 6 August 2014 from Wagga Wagga Local Court.
The date of the offence is 7 November 1986.
The offence is contrary to s 61D(1) Crimes Act 1900 (NSW), being sexual assault (category 3) sexual intercourse without consent, the victim being aged less than 16 years. The maximum penalty prescribed for the offence is imprisonment for 10 years. Mr Cannon was arrested on 26 February 2014.
The Court Attendance Notice is as follows:

“Between 4.00am and 4.30am on 8/11/1986 at Wagga Wagga did have sexual intercourse with AGW without her consent and knowing that AGW had not consented to the sexual intercourse.”

It is also part of the Court Attendance Notice that it is a sexual assault (category 3) -…

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 Cannon

Details

AGLC: R v Cannon [2015] NSWDC 125
Case: [2015] NSWDC 125
Decision Date: 09 July 2015

CaseChat Overview and Summary

In the case of R v Cannon, the respondent, Cannon, was convicted of a sexual assault committed in 1986. The matter was heard in the High Court of Australia, which was called upon to determine the appropriate sentence for the offence. The court had to consider the relevant sentencing principles and the legislative history surrounding sexual assault offences to arrive at an appropriate sentence that adhered to the principles of totality.

The primary legal issue before the court was to determine the appropriate sentence for the offence of sexual assault, taking into account the principles of sentencing and the legislative history. The court had to consider the seriousness of the offence, the offender's culpability, and the need for deterrence and rehabilitation. Additionally, the court was required to ensure that the sentence was proportionate and did not exceed the maximum penalty prescribed by law.

The court held that the appropriate sentence for the offence of sexual assault should be determined by considering the totality of the circumstances, including the nature of the offence, the offender's culpability, and the need for deterrence and rehabilitation. The court emphasised the importance of ensuring that the sentence was proportionate and did not exceed the maximum penalty prescribed by law. In arriving at the sentence, the court considered the legislative history of sexual assault offences and the principles of sentencing that had evolved over time. The court ultimately determined that the appropriate sentence for the offence was a term of imprisonment of 7 years with a non-parole period of 3 years.

The court's final orders were that the respondent, Cannon, be sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years. The court's decision provides guidance to sentencing courts in determining appropriate sentences for sexual assault offences, taking into account the principles of sentencing and the legislative history.

Orders

Orders of the court

Sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Cannon [2015] NSWDC 125

Most Recent Citation

R v MW [2019] NSWDC 307

Cases citing this decision · 1 of 1 shown

R v MW
[2019] NSWDC 307 Para 23

…What follows under this heading is essentially a repeat of what I said in R v RP [2015] NSWDC 125. The offending occurred when the offender was 15 years of age and therefore a juvenile. Had the offences been reported at the time of commission or close to the time of commission the offender would have been entitled…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Moffitt v The Queen
[2020] NSWDC 486 Para 79

…In R v Moffitt (1990) 49 A Crim R 20 at 38, Badgery-Parker J noted that prior to the Sentencing Act , non-parole periods were “often as short as 50 percent of the head sentence or even less.”…
R v Close
[2020] NSWSC 1026 Para 102

…Partial accumulation and accumulation can be a special circumstance: R v Close (1992) 65 A Crim R 55; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 1…
Ewen v R
[2015] NSWCCA 117 Para 102

…126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at [227].…
RL v R
[2015] NSWCCA 106 Para 34

…I reject the Crown submission the offence was part of a planned criminal activity pursuant to s 21A(2)(n) Crimes (Sentencing Procedure) Act : RL v R [2015] NSWCCA 106 at [36]-[37]. The offence was not part of a planned or organised criminal activity: s 21A(3)(b) Crimes (Sentencing Procedure) Act . There was though s…
LJS v The Queen
[2015] NSWCCA 47 Para 100

…e period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice: LJS v R [2015] NSWCCA 47 at [17].…
Betts v R
[2015] NSWCCA 39 Para 33

…rceived vulnerability of the victim rather than a class of victims, which is the focus of s 21A(2)(l) Crimes (Sentencing Procedure) Act : Betts v R [2015] NSWCCA 39 at [29]-[30] (R S Hulme J).…
MD v R
[2015] NSWCCA 37 Para 102

…5; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at [227].…
SHR v R
[2014] NSWCCA 94 Para 105

…Only one case concerning sentences imposed for s 61D offences was referred to by defence counsel: SHR v R [2014] NSWCCA 94.…
MPB v R
[2013] NSWCCA 213 Para 7

…cing principles and the relevant legislation as it was in 1986, some 29 years ago: R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MPB v R [2013] NSWCCA 213; 234 A Crim R 576.…
Magnuson v R
[2013] NSWCCA 50 Para 101

…Further, as Button J pointed out in Magnuson v R [2013] NSWCCA 50 at [143], the Court’s approach to questions of accumulation and concurrence was “more lax” prior to the High Court decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684, LJS at [18].…
R v MJR
[2010] NSWSC 653 Para 7

…n stands to be sentenced applying sentencing principles and the relevant legislation as it was in 1986, some 29 years ago: R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MPB v R [2013] NSWCCA 213; 234 A Crim R 576.…
Wakefield v R
[2010] NSWCCA 12 Para 71

…al Appeal did not give specific reasons for imposing an effective minimum term well in excess of 75 percent of the total head sentence: R v Wakefield [2010] NSWCCA 12 at [26]. The judgment though makes it clear the seriousness of the offending - "the extreme circumstances of this case” - required the imposition of…
CPW v R
[2009] NSWCCA 105 Para 78

…term of the sentence. This was because of the reduction of the head sentence by the application of remissions. Reference was made to this in CPW v R [2009] NSWCCA 105; 195 A Crim R 149.…
AJB v R
[2007] NSWCCA 51 Para 13

…In AJB v R [2007] NSWCCA 51; 169 A Crim R 32, Howie J said at [28]:…
R v MAK
[2006] NSWCCA 381 Para 49

…The present offending was certainly not an aberration or foreign to the prisoner’s character: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [50] ff.…
R v Swan
[2005] NSWCCA 252 Para 102

…can be a special circumstance: R v Close (1992) 65 A Crim R 55; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at [227].…
R v MJR
[2002] NSWCCA 129 Para 7

…ercise, as Mr Cannon stands to be sentenced applying sentencing principles and the relevant legislation as it was in 1986, some 29 years ago: R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MPB v R [2013] NSWCCA 213; 234 A Crim R 576.…
R v Simpson
[2001] NSWCCA 534 Para 102

…Partial accumulation and accumulation can be a special circumstance: R v Close (1992) 65 A Crim R 55; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 14

…Mr King, counsel for the prisoner, submitted an allowance was given and not quantified prior to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104. As noted though, he submitted a 25 percent discount should be specified.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 14

…Mr King, counsel for the prisoner, submitted an allowance was given and not quantified prior to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104. As noted though, he submitted a 25 percent discount should be specified.…
Regina v Simpson
[1999] NSWCCA 367 Para 102

…ation and accumulation can be a special circumstance: R v Close (1992) 65 A Crim R 55; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at [227].…
Pearce v The Queen
[1998] HCA 57 Para 101

…[143], the Court’s approach to questions of accumulation and concurrence was “more lax” prior to the High Court decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684, LJS at [18].…
Bugmy v The Queen
[1990] HCA 18

…ng Act 1989 ( R v Moffitt (1990) 20 NSWLR 114). The present case provides a rather extreme example of that proposition. (See also Bugmy v The Queen (1990) 64 ALJR 309).”…
Power v The Queen
[1974] HCA 26 Para 100

…The principle in Power v The Queen [1974] HCA 26; 131 CLR 623 cannot be overlooked. Since that decision, as early as it was in 1974, it has been clear that a non-parole period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice: LJS…

Legislation cited in this decision · 8

Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 94)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 17)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Parole of Prisoners Act 1966 (NSW)
1 mention (from Para 75)
Probation and Parole (Remissions) Amendment Act 1986 (NSW)
1 mention (from Para 10)
Probation and Parole Act 1983 (NSW)
1 mention (from Para 10)
Sentencing Act 1989 (NSW)
1 mention (from Para 65)

Medium Neutral Citation:	R v Cannon [2015] NSWDC 125
Decision date:	09 July 2015
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years
Catchwords:	CRIMINAL LAW – sentence – sexual assault – offence committed in 1986 – relevant sentencing principles – legislative history; CRIMINAL LAW – sentence - totality
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Parole of Prisoners Act 1966 (NSW) Probation and Parole Act 1983 (NSW) Probation and Parole (Remissions) Amendment Act 1986 (NSW) Probation and Parole (Serious Offences) Amendment Act 1987 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Betts v R [2015] NSWCCA 39 CPW v R [2009] NSWCCA 105; 195 A Crim R 149 Ewen v R [2015] NSWCCA 117 LJS v R [2015] NSWCCA 47 Magnuson v R [2013] NSWCCA 50 MD v R [2015] NSWCCA 37 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Close (1992) 65 A Crim R 55; 31 NSWLR 743 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481 R v Moffitt (1990) 49 A Crim R 20 R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704 R v Swan [2005] NSWCCA 252 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104 R v Wakefield [2010] NSWCCA 12 RL v R [2015] NSWCCA 106 SHR v R [2014] NSWCCA 94
Category:	Sentence
Parties:	Regina (Crown) Kenneth Barry Cannon (Offender)
Representation:	Counsel: M King (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown)
File Number(s):	2014/00060448
Publication restriction:	Name of victim anonymised