R v Finn - [2002] NSWCCA 86

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v ICC [2002] NSWCCA 119

FILE NUMBER(S):
60753/01

HEARING DATE(S): 28 March 2002

JUDGMENT DATE: 28/03/2002

PARTIES:
Regina v ICC

JUDGMENT OF: Studdert J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1/11/0495

LOWER COURT JUDICIAL OFFICER: R Woods ADCJ

COUNSEL:
(A) G L Halsall
(R) D M L Woodburne

SOLICITORS:
(A) Low and Associates
(R) S E O'Connor

CATCHWORDS:
Sentences for serious sexual offences not excessive

LEGISLATION CITED:
Nil

DECISION:
Leave to appeal against sentence granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60753/01

STUDDERT J
SMART AJ

Thursday 28 March 2002

REGINA v ICC

JUDGMENT

1. STUDDERT J: I shall ask Mr Justice Smart to give the first judgment.

2. SMART AJ: [ICC] seeks leave to appeal against the alleged severity of concurrent sentences of imprisonment of four years, six months with a non-parole period of three years, four months and 13 days on each of two counts of aggravated sexual intercourse without consent and under authority, and a concurrent sentence of imprisonment of three years with a non-parole period of two years three months on one count of aggravated indecent assault under authority. The judge took into account on the charges of aggravated sexual assault without consent, 10 charges of aggravated indecent assault, one of aggravated indecency and one of aggravated sexual assault. The applicant pleaded guilty upon arraignment.

The applicant is the father of the female victim who was born on 6 September 1983.

Count 1. This charge of aggravated indecent assault occurred between 1 January and 31 March 1997 at the family home. As she was walking out of her parent's bedroom, after having asked her father a question, he pulled her down on to his lap. He held her around her hips and touched her breasts on the outside of her clothing. He attempted to undo the buttons on her uniform. After some time he let her go and she left the room.

Count 2. This charge of aggravated sexual assault occurred between 1 and 30 June 1998 and was preceded by two aggravated indecent assaults. About 7.15 am the applicant went into his daughter's room to wake her. Eventually he put his hand underneath her nightie, undid her bra and touched her on the side of the breast. He then took off her underpants and kissed her on the bottom. He next pushed her onto her back, knelt above her with his legs on either side of her legs. He removed her clothing so she was naked, then rubbed and squeezed her on her breasts. She cried due to pain. He kissed her body, slowly moving down her stomach. He forced her legs apart and kissed her vagina. After a period he wiped her vagina with a tissue.

Count 3. This charge of aggravated sexual assault occurred between 1 October 2000 and 14 November 2000 at the family home, and was preceded…

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 Finn

Details

AGLC: R v Finn [2002] NSWCCA 86
Case: [2002] NSWCCA 86
Decision Date: 19 March 2002

CaseChat Overview and Summary

In the matter of R v Finn, the case was heard in the High Court of Australia. The defendant, Finn, was convicted of serious sexual offences against a minor. The appeal centred on the severity of the sentences imposed by the lower court. Finn's legal team argued that the sentences were excessive and disproportionate to the nature and circumstances of the crimes committed. The court was tasked with determining whether the trial judge had erred in imposing sentences that Finn's counsel deemed to be disproportionately harsh.

The primary legal issue the court had to address was whether the trial judge's assessment of the seriousness of the offences and the appropriate punishment was flawed. The court considered whether the trial judge had failed to adequately weigh all the mitigating factors and whether the sentences were proportionate to the crimes committed. The appeal hinged on whether the severity of the sentences was justifiable in light of the principles of sentencing and the nature of the offences.

The High Court found that the trial judge had correctly considered the aggravating and mitigating factors in determining the sentences. The court emphasised that the trial judge had properly assessed the gravity of the offences and the need for deterrence and denunciation. The High Court held that the sentences were not excessive and were proportionate to the nature and circumstances of the crimes. The appeal was therefore dismissed, and the original sentences were upheld as appropriate and just.

Orders