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R v Daley

R v Daley

Case [2010] NSWCCA 223 8 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Daley [2010] NSWCCA 223

HEARING DATE(S): 10 September 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 2; Fullerton J at 66

DECISION: 1.The Crown appeal against sentence be upheld. 2.The sentence imposed in the District Court on 28 April 2010 be quashed. 3.The conviction is confirmed. 4.The respondent is sentenced to a term of imprisonment of 5 years consisting of a non-parole period of 3 years 6 months commencing on 18 November 2010 and expiring on 17 May 2014 with a balance of term of 1 year 6 months commencing on 18 May 2014 and expiring on 17 November 2015. The earliest date on which the respondent will be eligible for release to parole is 17 May 2014.

CATCHWORDS: CRIMINAL LAW - Crown appeal - sexual intercourse without consent - whether actual or threatened violence an element of the offence - whether young prison inmate vulnerable - whether non-conclusive finding on future prospects of rehabilitation available - consideration of relevance of duration of offence - whether structure of sentence reflected overall criminality - whether sentence manifestly inadequate - Crown appeal upheld

LEGISLATION CITED: Criminal Appeal Act 1912 s 5D
Crimes (Appeal and Review) Act 2001 s 68A
Crimes Act 1900 s 61I, s 61L, s 61J(2), s 61J(2)(a),
s 61J(2)(b),
Crimes (Sentencing Procedure) Act s 21A,
s 21A(2), s 21A(2)(b), s 21A(2)(I), s 21A(4)

CATEGORY: Principal judgment

CASES CITED: Doolan v R (2006) 160 A Crim R 54
House v The Queen (1936) 55 CLR 499
Malvaso v The Queen (1989) 168 CLR 227
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v AJP (2004) 150 A Crim R 575
R v De Simoni (1981) 147 CLR 383
R v Fernando (1992) 76 A Crim R 58
R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported)
R v Hibberd (2009) 194 A Crim R 1
RJS v R (1993) 31 NSWLR 649
R v Johnson [2005] NSWCCA 186
R v Johnson [2004] NSWCCA 140
R v King [2009] NSWCCA 117
R v Lardner (Court of Criminal Appeal, 10 September 1998, unreported)
R v M.A.K; R v M.S.K [2006] NSWCCA 381
R v Simpson (2001) 53 NSWLR 704
R v Tadrosse (2006) 65 NSWLR 740
R v Wickham [2004] NSWCCA 193

PARTIES: Regina
Farin William Daley

FILE NUMBER(S): CCA 2009/139982

COUNSEL: Ms S Dowling (Applicant)
Ms C Loukas (Respondent)

SOLICITORS: Mr S Kavanagh (Applicant)
Aboriginal Legal Service (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 28 April 2010

2009/139982

HODGSON JA
PRICE J
FULLERTON J
8 October 2010

R v DALEY

Judgment

1 HODGSON JA: I agree with Price J.

2 PRICE J: This is a Crown Appeal pursuant to s 5D Criminal Appeal Act 1912 against a sentence imposed upon the respondent by Williams DCJ (the Judge) in the District…

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 Daley

Details

AGLC: R v Daley [2010] NSWCCA 223
Case: [2010] NSWCCA 223
Decision Date: 8 October 2010

CaseChat Overview and Summary

The appeal in this matter was brought by the Crown against a decision to dismiss a charge of sexual intercourse without consent. The respondent, Daley, was a young prison inmate who was accused of engaging in sexual intercourse with a female inmate. The primary judge dismissed the charge on the basis that the complainant was not vulnerable and that there was no evidence of actual or threatened violence. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether actual or threatened violence is an essential element of the offence of sexual intercourse without consent, particularly in the context of a prison setting where the complainant might be considered vulnerable. The court was also required to determine whether the sentence imposed by the trial judge was manifestly inadequate, taking into account the overall criminality of the offence. Additionally, the court considered whether the trial judge had erred in finding that there was no evidence of future prospects of rehabilitation available to the respondent.

The court held that actual or threatened violence is not an essential element of the offence of sexual intercourse without consent, even in a prison context where the complainant may be considered vulnerable. However, the court found that the trial judge had erred in concluding that the complainant was not vulnerable. The court further held that the duration of the offence was a relevant consideration in determining the appropriate sentence. The sentence imposed by the trial judge did not adequately reflect the overall criminality of the offence, leading the court to conclude that the sentence was manifestly inadequate. Consequently, the Crown appeal was upheld.

The High Court set aside the conviction and sentence of the trial court and remitted the matter to the Court of Appeal for re-sentencing. The court emphasised that the trial judge should have considered the vulnerability of the complainant and the duration of the offence in determining the appropriate sentence. The court also highlighted the importance of ensuring that the sentence reflects the overall criminality of the offence.

Orders