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R v Cattell

R v Cattell

Case [2019] NSWCCA 297 17 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cattell [2019] NSWCCA 297
Hearing dates: 20 November 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Before: Hoeben CJ at CL at [1];
Price J at [2];
Campbell J at [191]
Decision:
(1) Crown appeal allowed.

(2) The aggregate sentence imposed in the District Court of New South Wales on 26 July 2019 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 3 years commencing on 26 July 2019 and expiring on 25 July 2022 with a non-parole period of 18 months expiring on 25 January 2021.
Catchwords: CRIMINAL LAW – Crown appeal against inadequacy of aggregate sentence – historical child sexual assault offences – elderly respondent – whether manifestly inadequate – whether judge overlooked s 25AA(1) of Crimes (Sentencing Procedure) Act – sentence patterns and practices at time of sentence – importance of expressly stating an offender has been sentenced in accordance with ss 25AA(1) and (3) – delay – whether fairness to respondent has played a dominant role in sentence – error of principle – reason for delay in old sexual assault offences – totality – respondent previously sentenced for similar offences – purposes of totality principle – failure of sentence to reflect the respondent’s conduct as a whole – non-parole period – double counting – whether residual discretion should be exercised – re-sentence – importance of general deterrence and denunciation – sentence increased.
Legislation Cited: Crimes Act 1900 (NSW) ss 61E(1A), 61M(1), 66C(1), 81, 81A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25AA(1), (3), (5), 44, 53A
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Appeal Act 1912 (NSW) s 5D
Parole of Prisoners Act 1966 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1; 86 ALJR 208; 284 ALR 445; 218 A Crim R 241
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9; 89 ALJR 407; 317 ALR 308; 243 A Crim R 282; 151 ALD 8
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556; 327 FLR 71
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152
Hornhardt v R [2017] NSWCCA 186
House v The King (1936) 55 CLR 499; [1936] HCA 40; 10 ALJ 22; 10 ALJR 202; 55 ALR 499; 9 ABC 117
Magnuson v R [2013] NSWCCA 50
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; 83 ALR 1

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 Cattell

Details

AGLC: R v Cattell [2019] NSWCCA 297
Case: [2019] NSWCCA 297
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case of R v Cattell involved a Crown appeal against the inadequacy of an aggregate sentence imposed on the respondent, Cattell, for historical child sexual assault offences. The appeal was heard in the relevant appellate court, where the Crown argued that the original sentence was manifestly inadequate and that the sentencing judge had failed to adequately consider certain statutory provisions and sentencing principles. The central legal issues revolved around whether the sentence was inadequate, whether the judge had overlooked relevant statutory requirements, and whether the totality principle was appropriately applied in the sentencing process.

The court examined whether the sentence imposed was manifestly inadequate and whether the judge had erred by not expressly stating that the sentence was in accordance with the statutory provisions. It was highlighted that the sentencing judge should have expressly considered the sentence patterns and practices at the time of the offence, and the importance of stating that the offender was sentenced in accordance with relevant sections of the Crimes (Sentencing Procedure) Act. The court also considered whether the delay in prosecuting the offences had influenced the sentence and whether the principles of fairness and totality were adequately addressed. The Crown argued that the sentence did not reflect the respondent's conduct as a whole and failed to appropriately consider the purposes of the totality principle.

In its reasoning, the court found that the sentence was indeed manifestly inadequate and that the judge had overlooked the statutory requirement to expressly state that the offender had been sentenced in accordance with certain provisions. The court also determined that the delay in prosecuting the offences was not adequately considered in the sentencing process and that the principles of fairness and totality were not properly applied. The court noted the importance of general deterrence and denunciation in sentencing for such offences. Consequently, the court exercised its residual discretion to increase the sentence, ensuring that it reflected the seriousness of the offences and the need for appropriate deterrence and denunciation. The court's decision resulted in an increased sentence for the respondent.

Orders