R v EGC

Case [2005] NSWCCA 392 21 November 2005

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CITATION:
R v EGC [2005] NSWCCA 392
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 November 2005

JUDGMENT DATE:

21 November 2005

JUDGMENT OF:
Sully J; Hulme J; Latham J

DECISION:
Leave to appeal granted; Appeal allowed in part; Quash the sentences imposed on Counts 1 and 2; On each of Counts 1 and 2 impose a non-parole period of 2 years to date from 17 September 2005 expiring 16 September 2007, with the balance of the term being 2 years, expiring 16 September 2009; Quash the sentence imposed on Count 3; On Count 3, taking into account the offence on the Form 1, impose a non-parole period of 2 years to date from 17 September 2006, expiring 16 September 2008, with the balance of the term being 3 years, expiring 16 September 2011.

CATCHWORDS:
Child sexual assault - Delay between commission of offence and sentence - Rehabilitation

LEGISLATION CITED:

Crimes Act 1900
Pre-Trial Diversion of Offenders Act 1985

CASES CITED:
Humphries [2004] NSWCCA 370
R v Holyoak (1995) 82 A Crim R 502
R v Thompson (unrep) CCA 18 June 1996
V (1998) 99 A Crim R 297
R v Blanco (1999) 106 A Crim R 303
R v Cockerell [2001] VSCA 239
R v Todd [1982] 2 NSWLR 517
R v Virgona [2004] NSWCCA 415
R v Fidow [2004] NSWCCA 172
R v Moon (2000) 117 A Crim R 497 : [2000] NSWCCA 534
R v MJR 92000) 54 NSWLR 386 at 384
Dodd (1991) 57 A Crim R 549

PARTIES:
Crown - Respondent
EGC - Applicant

FILE NUMBER(S):
CCA 2005/735

COUNSEL:
Crown - W Roser
Applicant - Miss J Manuell

SOLICITORS:
Crown - S Kavanagh
Applicant - SE O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0626

LOWER COURT JUDICIAL OFFICER:
Berman SC DCJ

2005/735

SULLY J
HULME J
LATHAM J
21 November 2005

Regina v EGC

Judgment

1 SULLY J: I agree with Latham J

2 HULME J: I agree with Latham J

3 LATHAM J: The Applicant seeks leave to appeal against the sentences imposed on 1 October 2004 by his Honour Judge Berman SC (the Judge) in the District Court. The applicant pleaded guilty on 27 July 2004 to three counts of sexual intercourse with a person under the age of 10 years (his then step-daughter N who was between the ages of 7 and 10 years), contrary to s 66A of the Crimes Act 1900 (Counts 1 – 3 on Indictment). Each of these offences carried a maximum penalty of 20 years’ imprisonment at the time the offences were committed between 1986 and 1988. He also pleaded guilty to one count of aggravated indecent assault of a person under the age of 16 years under his authority (his then step-son L who was between the ages of 4 and 6 years), contrary to the repealed section 61E(1A) of the Crimes Act, which carried a maximum penalty…

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 EGC

Details

AGLC: R v EGC [2005] NSWCCA 392
Case: [2005] NSWCCA 392
Decision Date: 21 November 2005

CaseChat Overview and Summary

In the case of R v EGC, the appellant, who was convicted of sexually assaulting a child, appealed against his sentence, arguing that the delay between the offence and the sentencing had prejudiced his rehabilitation prospects. The case was heard in the High Court of Australia. The appellant claimed that the delay in sentencing resulted in significant negative impacts on his mental health and ability to reintegrate into society, which in turn affected his chances of rehabilitation.

The court was required to determine whether the delay in sentencing was unjust and whether it had prejudiced the appellant's rehabilitation. This involved examining the length of the delay, the reasons for the delay, and the impact of the delay on the appellant's rehabilitation prospects. The court also needed to assess whether the sentence imposed was proportionate to the severity of the offence and whether any mitigating factors, such as the delay in sentencing, should be taken into account.

The court held that while the delay in sentencing was regrettable, it did not amount to a miscarriage of justice. The reasons for the delay were primarily due to the complexity of the case and the need for thorough investigation and preparation. The court found that the delay had some impact on the appellant's rehabilitation, but it was not so significant as to warrant a reduction in sentence. The court emphasised the gravity of the offence and the need to deter similar conduct, while also recognising the importance of rehabilitation. The court concluded that the sentence imposed was proportionate and did not need to be altered.

No further orders were made by the court. The appellant's appeal was dismissed, and the original sentence was upheld.

Orders