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R v Fitzgerald

R v Fitzgerald

Case [2004] NSWCCA 5 6 February 2004

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Jurisdiction

Statutory Construction

Criminal Law

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Reported Decision:
59 NSWLR 493
144 A Crim R 316

New South Wales

Court of Criminal Appeal

CITATION: Regina v Brett James Fitzgerald [2004] NSWCCA 5

HEARING DATE(S): 12 December 2003

JUDGMENT DATE:
6 February 2004

JUDGMENT OF: Sully J at 1; Barr J at 23; Newman AJ at 24

DECISION: Crown appeal dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW)
Criminal Law Consolidation Act 1935 (SA)

CASES CITED: R v D (1997) 69 SASR 413
S v The Queen (1989) 168 CLR 266

PARTIES :
Regina
Brett James Fitzgerald

FILE NUMBER(S): CCA 60244/03

COUNSEL: P. Miller - Crown
A. P. Cook - Respondent

SOLICITORS: C. K. Smith - Crown
S. E. O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0308

LOWER COURT
JUDICIAL OFFICER : Walmsley DCJ

60244/03

SULLY J
BARR J
NEWMAN AJ
6 February 2004

REGINA v BRETT JAMES FITZGERALD

Judgment

1 SULLY J: This is a Crown appeal against the asserted inadequacy of a sentence of imprisonment passed upon the respondent, Mr. Fitzgerald, by his Honour Judge Walmsley SC on 20 May 2003. The appeal raises various issues in connection with section 66EA of the Crimes Act 1900 (NSW). Section 66EA was inserted into the Crimes Act by the Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW). At the date of the respondent’s sentencing, the section provided relevantly:

66EA

(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.

(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(5) A charge of an offence against this section:

(a) must specify with reasonable particularity the period during which the offence against this section occurred, and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(6) In order for the accused to be convicted of an offence against this section:

(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and

(b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need…

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 Fitzgerald

Details

AGLC: R v Fitzgerald [2004] NSWCCA 5
Case: [2004] NSWCCA 5
Decision Date: 6 February 2004

CaseChat Overview and Summary

This case involves a Crown appeal against the sentence passed upon Brett James Fitzgerald by his Honour Judge Walmsley SC on 20 May 2003. The appeal raises various issues in connection with section 66EA of the Crimes Act 1900 (NSW). The primary legal issue before the court was whether the sentencing judge erred in his approach to sentencing the respondent under section 66EA of the Crimes Act 1900 (NSW). The Crown argued that the proper approach is to sentence an offender for the whole of the relevant conduct proved subject to the maximum penalty of 25 years imprisonment, while the respondent submitted that the sentencing approach should be similar to that for a number of representative offences. The court held that the sentencing judge did not err in law in adopting the approach approved by the decision in R v D (1997) 69 SASR 413. The court found that there was nothing in the New South Wales section 66EA to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a section 66EA conviction, should be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences. The court dismissed the Crown appeal.

Orders