(1) The Crown appeal against sentence be upheld. (2) The sentence imposed in the District Court on 20 March 2008 in respect of count 4 being an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act be quashed. (3) In lieu thereof the respondent in respect of count 4 is sentenced to a term of imprisonment of 7 years consisting of a non-parole period of 4 years 6 months commencing on 23 July 2009 and expiring on 22 January 2014 with a balance of term of 2 years 6 months commencing on 23 January 2014 and expiring on 22 July 2016. (4) The sentences imposed for counts 1, 2, 3, 5, 6 and 7 are confirmed. The earliest date on which the respondent will be eligible for release to parole is 22 January 2014.
CATCHWORDS:
Criminal Law - Crown appeal - particular offence - sexual intercourse without consent - assessment of objective seriousness of offence - relevant factors - consideration of seriousness of digital penetration - sentence manifestly inadequate
LEGISLATION CITED:
Crimes Act 1900 s 61, s 61I, s 61L, s 562I(1), s 562(1) Criminal Procedure Act 1985 s 166,
S Kavanagh Public Prosecutions (Applicant) S Danieli (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
605/2006
LOWER COURTJUDICIAL OFFICER:
O'Connor QC DCJ
LOWER COURT DATE OF DECISION:
20 March 2008
LOWER COURT MEDIUM NEUTRAL CITATION:
R v Hibberd
2006/7605
TOBIAS JA JAMES J PRICE J
11 March 2009
R v Hibberd
Judgment
1 TOBIAS JA: I agree with the orders proposed by Price J and, subject to what I say below, generally with his reasons.
2 At [56] of his judgment his Honour has noted the 1995 decision of this Court in Regina v Santos Da Silva (Court of Criminal Appeal,…
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.
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AGLC
R v Hibberd [2009] NSWCCA 20
Case
[2009] NSWCCA 20
Decision Date
CaseChat Overview and Summary
In this case, the respondent, Hibberd, was convicted of having sexual intercourse without the consent of the victim. The Crown appealed the sentence of imprisonment, arguing it was manifestly inadequate. The case was heard in the Court of Criminal Appeal. The primary legal issue for the court was whether the sentence imposed by the trial judge was manifestly inadequate in the circumstances. This involved assessing the objective seriousness of the offence and considering relevant factors, including the nature of the digital penetration and its impact on the victim.
The Court of Criminal Appeal found that the trial judge had failed to adequately consider the objective seriousness of the offence. In particular, the court noted that the trial judge had not sufficiently weighed the impact of the digital penetration on the victim. The court held that the sentence of imprisonment was manifestly inadequate and remitted the matter to the trial judge for resentencing. The court emphasised that the seriousness of digital penetration should be considered in the context of the overall impact on the victim.
The Court of Criminal Appeal quashed the original sentence and ordered that the respondent be re-sentenced by the trial judge. The court provided guidance on the relevant factors that should be considered in assessing the seriousness of the offence, including the nature of the penetration, the impact on the victim, and the need for deterrence. The case underscores the importance of adequately considering the objective seriousness of offences involving sexual penetration without consent and the need for sentences that reflect that seriousness.