R v Fitzgerald

Case [2004] NSWCCA 5


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 (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.
          (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…

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

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.

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