R v CTG

Case [2017] NSWCCA 163 5 July 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v CTG [2017] NSWCCA 163
Hearing dates: 23 June 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Before: Hoeben CJ at CL at [1];
R A Hulme J at [105];
Wilson J at [106]
Decision:
(1)   Crown appeal allowed.
(2)   The sentence imposed by Williams SC DCJ on 24 February 2017 is quashed.
(3)   In lieu thereof the respondent is sentenced to imprisonment for 12 years with a non-parole period of 8 years. The sentence is to date from 7 May 2015. The non-parole period will expire on 6 May 2023 whereupon the respondent will become eligible for release on parole. The total term will expire on 6 May 2027.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – one offence of unauthorised possession of a pistol, five offences of sexual intercourse with a child under the age of 10 years and one offence of make child abuse material – error in assessment of objective seriousness of sexual intercourse offences – error in assessment of matters to be properly taken into account in mitigation of offending – failure to properly apply the principle of totality – sentence manifestly inadequate – Crown appeal allowed – offender resentenced.
Legislation Cited: Crimes Act 1900 (NSW) – ss 66A, 91G
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A
Criminal Appeal Act 1912 (NSW) – s 5D
Firearms Act 1996 (NSW) – s 7
Cases Cited: Bravo v R [2015] NSWCCA 302
CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
EG v R [2015] NSWCCA 21
Harris v R [2015] NSWCCA 81
Jonson v R [2016] NSWCCA 286
Khoury v R [2011] NSWCCA 118
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mills v R [2017] NSWCCA 87
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v BA [2014] NSWCCA 148
R v Barker [2016] NSWCCA 193
R v Dodd (1991) 57 A Crim R 349
R v Gavel [2014] NSWCCA 56
R v JP [2015] NSWCCA 267
R v ND [2016] NSWCCA 103
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Regina – Applicant
CTG - Respondent
Representation:
Counsel:
M Cinque SC – Applicant
W Wilcher – Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant
C Murray – Respondent

File Number(s): 2015/136681
Publication restriction: Under s 578A of the Crimes Act 1900 (NSW) the publication of the victim’s name or any other information that might identify the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 February 2017

Before:

M L Williams SC DCJ

File Number(s):

2015/136681

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 24 February 2017 the respondent was sentenced…

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 CTG

Details

AGLC: R v CTG [2017] NSWCCA 163
Case: [2017] NSWCCA 163
Decision Date: 05 July 2017

CaseChat Overview and Summary

The case of R v CTG involved the appellant who was convicted of one count of unauthorised possession of a pistol, five counts of sexual intercourse with a child under the age of 10 years, and one count of making child abuse material. The appellant was sentenced in the County Court, and the Crown subsequently appealed against the sentence, arguing it was manifestly inadequate. The Court of Appeal was tasked with determining whether the trial judge erred in assessing the objective seriousness of the sexual intercourse offences, the matters in mitigation, and in applying the principle of totality. The appeal centred on whether the sentence imposed was proportionate to the gravity of the crimes committed.

The court examined the legal framework for sentencing in Victoria, particularly focusing on the principles of objective seriousness, totality, and the assessment of mitigating factors. The primary legal issues were whether the trial judge correctly evaluated the severity of the sexual offences, whether the mitigating factors were appropriately considered, and if the principle of totality was correctly applied. The Crown argued that the sentence did not adequately reflect the heinous nature of the crimes, particularly the sexual offences involving a child under 10 years of age, and that the trial judge had under-estimated the objective seriousness and over-emphasised certain mitigating factors. The appellant, on the other hand, contended that the sentence was appropriate given the circumstances.

In its judgment, the Court of Appeal found that the trial judge had indeed erred in several respects. The court held that the objective seriousness of the sexual offences was underestimated, and the mitigating factors were not appropriately balanced against the gravity of the crimes. The court also determined that the principle of totality was not correctly applied, leading to a sentence that was manifestly inadequate. Consequently, the Crown appeal was allowed, and the appellant was resentenced to a term that more accurately reflected the seriousness of the offending. The court emphasised the need for trial judges to carefully consider the objective seriousness of sexual offences involving children and to ensure that the principle of totality is properly applied in sentencing.

The final orders of the Court of Appeal included the quashing of the original sentence and the re-sentencing of the appellant to a term that the court deemed appropriate given the nature and circumstances of the offences. The new sentence was intended to reflect the true gravity of the crimes and to provide adequate deterrence and protection to the community.

Orders