R v DAJ - [2012] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v DAJ [2012] NSWCCA 143
Hearing dates: 10 April 2012
Decision date: 04 July 2012
Before: McClellan CJ at CL at [1]
Hidden J at [2]
Hislop J at [30]
Decision:
Appeal allowed. Sentences of non-parole period of 18 months with a balance of term of 6 months on counts 1, 2, 5 and 6 confirmed. Sentences on counts 1 and 2 to date from 14.04.2010, but sentences on counts 5 and 6 to date from 14.10.2010. Sentence on count 4 quashed, respondent sentenced to non-parole period of 3 years, commencing 14.04.2011 and expiring 13.04.2014, balance of term of 18 months, commencing on 14.04.2014 and expiring on 13.10.2015. Sentence on count 3 quashed, respondent sentenced to non-parole period of 2 years and 9 months, commencing 14.10.2011 and expiring 13.07.2014, balance of term 2 years and 3 months, commencing 14.07.2014 and expiring 13.10.2016.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - four counts of aggravated indecent assault, two counts of aggravated sexual intercourse without consent - child victim - step-daughter of respondent - whether sentencing judge's assessment of objective gravity of the offences appropriate - whether sentences manifestly inadequate
Legislation Cited: Bail Act 1978
Crimes Act 1900
Cases Cited: Clinton v R [2009] NSWCCA 276
Silvano v R [2008] NSWCCA 118, 184 A Crim R 593
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39, 244 CLR 120
Category: Principal judgment
Parties: Regina (Crown)
DAJ (respondent)
Representation: Counsel:
M Cinque (Crown)
G A Newton (respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
B Sandland - Legal Aid Commission (respondent)

File Number(s): 2007/10973
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-04-20 00:00:00

Before:

Lakatos SC DCJ

File Number(s):

2007/10973

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.

HIDDEN J: This is a Crown appeal against sentences imposed upon the respondent, DAJ, for a series of offences of sexual assault committed upon a child. He was found guilty of these offences after a trial in the District Court by judge alone. He was also sentenced for failing to appear, an offence under s 51(1) of the Bail Act 1978, but no appeal is brought against that sentence. As to the sexual offences he was found guilty of four counts of aggravated indecent assault, an offence under s 61M(1) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 7 years and a standard non-parole period of 5 years, and two counts of aggravated sexual intercourse without consent, an offence under s 61J(1) of the Crimes Act, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years.

The trial judge passed sentence for these offences in the escalating order of their gravity, as follows:

Failing to appear, a fixed term of imprisonment for 6 months, dating from 15 October 2009;

Counts 1 and 2 (aggravated indecent assault): concurrent terms of…

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 DAJ

Details

AGLC: R v DAJ [2012] NSWCCA 143
Case: [2012] NSWCCA 143
Decision Date: 04 July 2012

CaseChat Overview and Summary

The appellant, the Crown, appealed against the sentences imposed on the respondent who had been found guilty of four counts of aggravated indecent assault and two counts of aggravated sexual intercourse without consent involving his step-daughter. The case was heard in the Supreme Court of Victoria. The Crown argued that the sentences were manifestly inadequate and that the sentencing judge had failed to appropriately assess the objective gravity of the offences.

The primary legal issues before the court were whether the sentencing judge's assessment of the objective gravity of the offences was appropriate, and if the sentences imposed were manifestly inadequate. The Crown submitted that the sentencing judge had not adequately considered the gravity of the crimes, particularly given the vulnerability of the victim and the respondent's position of trust and authority. The court needed to determine if the sentences reflected the seriousness of the offences and if they were disproportionate to the crimes committed.

In considering the appeal, the court examined the sentencing principles and the gravity of the offences. It found that the sentencing judge had failed to adequately assess the objective gravity of the offences, particularly in relation to the power imbalance between the respondent and the victim. The court concluded that the sentences imposed were manifestly inadequate and did not reflect the seriousness of the crimes. The appeal was allowed, and the matter was remitted to the County Court for re-sentencing. The court emphasised the importance of considering the gravity of such offences and the need for appropriate sentences that reflect the crimes committed against vulnerable victims.

Orders