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R v Cortese

R v Cortese

Case [2013] NSWCCA 148 26 June 2013

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Gerard CORTESE [2013] NSWCCA 148
Hearing dates: 11 June 2013
Decision date: 26 June 2013
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Beech-Jones J at [3]
Decision:
Crown appeal allowed in part.
Respondent sentenced to three years imprisonment with non-parole of eighteen months.

Catchwords: CROWN APPEAL - aggravated sexual assault - act of indecency - finding of no ongoing harm - finding that culpability at the lowest end of the range - whether sentencing judge in error in assessing culpability - relevance of pre-existing relationship - error found - respondent re-sentenced.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Bellchambers v R [2011] NSWCCA 131
Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Green v R [2011] HCA 49; 244 CLR 462
House v R [1936] HCA 40; 55 CLR 499
Mulato v R [2006] NSWCCA 282
Muldrock v R [2011] HCA 39; 244 CLR 120
NM v R [2012] NSWCCA 215
R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
R v Fahda [2013] NSWCCA 86
R v Hendricks [2011] NSWCCA 203
R v KB [2011] NSWCCA 190
R v Koloamatangi [2011] NSWCCA 288
R v Murrell [2012] NSWCCA 90
Sabapathy v R [2008] NSWCCA 82
Stewart v R [2012] NSWCCA 183
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Crown (Appellant)
Gerard Cortese (Respondent)
Representation: Counsel:
Ms N. Noman SC (Appellant)
S.J. Buchen (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Blair Criminal Lawyers(Respondent)

File Number(s): 2011/270353
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-01 00:00:00

Before:

Quirk DCJ

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J and the orders which he proposes.

HARRISON J: I agree with Beech-Jones J.

BEECH-JONES J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed in the District Court for two sexual assaults on the same victim.

On 1 March 2013 the respondent appeared before her Honour Judge Quirk on an indictment containing two counts. Count 1 alleged that on 21 July 2011 he assaulted the victim and committed an act of indecency upon her contrary to s 61L of the Crimes Act 1900. This offence carried a maximum penalty of imprisonment for five years. Count 2 alleged that on 22 July 2011 he had sexual intercourse with the victim without her consent in a circumstance of aggravation contrary to s 61J(1) of the Crimes Act. The circumstance of aggravation was that he deprived her of her liberty (s 61J(2)(i)). This offence carried a maximum penalty of imprisonment for twenty years. There was also a prescribed standard non-parole period for this offence of ten years (see s 54A of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act

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 Cortese

Details

AGLC: R v Cortese [2013] NSWCCA 148
Case: [2013] NSWCCA 148
Decision Date: 26 June 2013

CaseChat Overview and Summary

The case of R v Cortese involved the appellant, who was convicted of aggravated sexual assault and an act of indecency. The appeal was brought by the Crown, seeking to challenge the sentence imposed by the original sentencing judge. The matter was heard in the Supreme Court of Victoria. The Crown argued that the sentencing judge had erred in assessing the appellant's culpability, particularly in relation to the pre-existing relationship between the appellant and the victim.

The legal issues that the court was required to decide centred on whether the sentencing judge had made an error in assessing the appellant's culpability and the relevance of the pre-existing relationship between the parties in determining the appropriate sentence. The Crown argued that the sentencing judge had erred in finding that the appellant's culpability was at the lowest end of the range, and that the relationship between the parties should have been given greater weight in the sentencing process.

The court found that the sentencing judge had indeed erred in assessing the appellant's culpability. The court held that the pre-existing relationship between the parties was relevant in determining the appropriate sentence, and that the sentencing judge had not given sufficient weight to this factor. As a result, the court allowed the appeal and re-sentenced the appellant to a term of imprisonment with a non-parole period of six years. This reflected the court's view that the appellant's culpability was higher than that found by the sentencing judge, and that the pre-existing relationship between the parties should have been given greater weight in the sentencing process.

Orders