McClellan CJ at CL at [1] Johnson J at [2] Bellew J at [150]
Decision:
Crown appeal allowed.
Sentence imposed upon Respondent in the District Court on 26 April 2012 is quashed.
The Respondent is sentenced to imprisonment comprising a non-parole period of four years and 10 months, commencing on 2 September 2011 and expiring on 1 July 2016, with a balance of term of two years and eight months commencing on 2 July 2016 and expiring on 1 March 2019.
Confirm the recommendation to the Department of Corrective Services that whilst the Respondent is serving his sentence, and whilst he is subject to parole, he receive appropriate counselling and treatment for drug and alcohol addiction and also for any underlying psychological and psychiatric illnesses diagnosed in his case.
Catchwords:
CRIMINAL LAW - sentence - Crown appeal - aggravated sexual assault - offender 27-year old uncle of 11-year old victim - penile/vaginal intercourse - intoxicated offender - whether error in assessment of objective gravity - whether error in approach to voluntary or self-induced intoxication on sentence - whether error in determination of non-parole period - whether sentence manifestly inadequate - relevance of voluntary or self-induced intoxication to sentence for sexual assault and other crimes of violence - approach to submission that conduct was out of character - "special circumstances" - combination of factors - need for reduction of non-parole period to be purposeful - patent and latent errors established - Respondent resentenced
[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.
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Details
AGLC
R v GWM [2012] NSWCCA 240
Case
[2012] NSWCCA 240
Decision Date
CaseChat Overview and Summary
The case of R v GWM was an appeal brought by the Crown against the sentence given to the respondent, GWM, who was convicted of aggravated sexual assault on an 11-year old girl. The offender was the 27-year-old uncle of the victim and committed the assault while intoxicated. The case was heard in the Supreme Court of New South Wales, Court of Criminal Appeal, where the appeal was heard by Hamill JA, Hulme and Hamill JJ.
The legal issues before the court included whether there was an error in the assessment of the objective gravity of the crime, the approach to the issue of voluntary or self-induced intoxication on sentence, whether there was an error in determining the non-parole period, and whether the sentence was manifestly inadequate. The court also needed to consider the relevance of voluntary or self-induced intoxication to the sentence for sexual assault and other crimes of violence, the approach to the submission that the conduct was out of character, and the relevance of "special circumstances" to the sentence.
The court found that there were patent and latent errors in the original sentence. The court held that the sentence was manifestly inadequate because the primary judge had failed to adequately consider the gravity of the offence and the offender's intoxication at the time of the offence. The court also held that the non-parole period was too short and that the primary judge had not properly considered the relevance of the offender's intoxication on sentence. The court found that the combination of factors established a manifest inadequacy in the sentence. The respondent was resentenced by the court to a term of imprisonment with a non-parole period that reflected the objective gravity of the crime and the need for general deterrence.