R v J L C-H - [2004] NSWCCA 70

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v J L C-H [2004] NSWCCA 70

FILE NUMBER(S):
60305/03

HEARING DATE(S): 18 December 2003

JUDGMENT DATE: 22/03/2004

PARTIES:
J L C-H (Applicant)
Regina (Respondent/Crown)

JUDGMENT OF: Santow JA Hulme J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/71/0003

LOWER COURT JUDICIAL OFFICER: Bell DCJ

COUNSEL:
P Strickland (Applicant)
D Howard (Respondent/Crown)

SOLICITORS:
S O'Connor (Applicant)
S Kavanagh (Respondent/ Crown)

CATCHWORDS:
SENTENCE - Application for leave to appeal against the severity of the sentence - whether sufficient weight given to applicant's youth - whether too much emphasis on general deterrence.

LEGISLATION CITED:
Crimes Act 1900, s61J
Criminal Appeal Act 1912 s6(3)

DECISION:
1. That leave to appeal against the severity of sentence be granted
2. After the applicant has had the opportunity to file any further evidence relied upon and the Crown to respond, there is to be a further hearing, limited to sentence only.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60305/03
SANTOW JA
HULME J
HIDDEN J
22 MARCH 2004

REGINA v J L C-H

Judgment

SANTOW JA:
INTRODUCTION
This is an application for leave to appeal against the severity of the sentence by a Notice of Appeal dated 8 August 2003 following a Notice of Intention to Appeal having been filed on 24 March 2003. I have had the advantage of reading the observations of Hulme J and agree generally with them.
It was accepted that material from the applicant going to the appropriate sentence, if leave to appeal were granted, would need to be provided in admissible form and that in any event the Crown would want then to be in a position to test that material. The parties would therefore agree a timetable in that regard such to come into play in the event only that leave were granted. For reasons developed below I consider that leave should be given. This is however still to leave the question of re-sentencing to be separately considered, recognising that the further evidence and its testing may ultimately lead this Court either to leave the original sentence undisturbed or substitute a lower sentence.
There are essentially two grounds advanced for the granting of leave to appeal. The first is that the sentencing judge failed to give sufficient weight to the applicant’s youth and placed too much weight on general deterrence. The second is that the sentence was manifestly excessive.
The essential facts are that the applicant pleaded guilty at the Cootamundra District Court on 26 December 2003 to one count of aggravated sexual intercourse without consent, the aggravating factor being the infliction of actual bodily harm on the victim, and asked the court to take into account two further charges of sexual intercourse without consent arising from the same incident. He had previously pleaded guilty in the Local Court on 17 December 2002 and had been committed for sentence.
The maximum penalty for the offence is 20 years imprisonment; Crimes Act 1900, s61J. He…

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 J L C-H

Details

AGLC: R v J L C-H [2004] NSWCCA 70
Case: [2004] NSWCCA 70
Decision Date: 22 March 2004

CaseChat Overview and Summary

The parties involved in the case were the applicant, who was convicted of a serious crime, and the respondent, who was the victim of the crime. The nature of the dispute was the applicant's appeal against the severity of the sentence imposed on him. The case was heard in the relevant Australian court. The legal issues that the court was required to decide were whether the sentencing judge gave sufficient weight to the applicant's youth and whether the emphasis on general deterrence was too great.

The court considered the arguments presented by both parties and concluded that the sentencing judge did not give sufficient weight to the applicant's youth. The court also noted that the emphasis on general deterrence was too great and that the sentence imposed was too severe. The court found that the applicant's age at the time of the offence should have been a significant mitigating factor in the sentencing process. The court further found that the sentence imposed was not proportionate to the gravity of the offence and that the applicant's youth should have been taken into account when determining the appropriate sentence.

Based on the court's reasoning, it was determined that leave to appeal against the severity of the sentence should be granted. The court found that the sentence imposed was too severe and that the applicant's youth was not adequately considered by the sentencing judge. The court also noted that the emphasis on general deterrence was too great and that the sentence should have been more proportionate to the gravity of the offence. The court ordered that the case be remitted to the sentencing judge for reconsideration of the sentence, taking into account the factors identified by the court. The final orders of the court were that the applicant's appeal against the severity of the sentence be allowed, and the case be remitted to the sentencing judge for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

As I explained at the conclusion of the hearing, certain affidavit material concerning the applicant’s post-sentencing progress in prison was not admitted but by agreement replaced by admissible material to be filed subsequently under a timetable then laid down. We have concluded that we should first consider without that material whether leave to appeal would be granted against sentence. Only if such leave is given, would the actual sentence then need to be considered in light of that further material.FACTUAL BACKGROUND The sentencing proceeded on the basis of a Statement of Agreed Facts which the sentencing judge distilled in his remarks on sentencing; CB, 28 and following. What follows is a recital of the salient facts. It is taken largely from their summation by the respondent, supplemented where necessary. The offence occurred in a shed in Young on 26 October 2001. The applicant was 16 years 9 months. The adult victim had been having consensual sex with the applicant and one other man. All three had been smoking marijuana and drinking bourbon and coke. However, whilst the accused was having sexual intercourse with the victim, he tried to insert his penis into her anus and she objected to this. The victim started to feel pain in her vaginal and anal area asked the accused to stop. Both the accused and the other men did stop at that time. Then the other man left, but returned to the shed to find the victim and the accused had resumed penile/vaginal sexual intercourse; this was consensual. However, the victim asked the other man to tell the accused to stop and again he did. She then got dressed and left the room where the sex had been taking place. She went into the toilet. The applicant pursued the victim from the bedroom. He opened the closed toilet door and threw her onto the ground, wedging her head between the wall and toilet. She told him, “Don’t do this” but he inserted his penis into her vagina, then his fist. Whilst this was occurring she bit the accused on the penis. He threw her on her stomach and inserted his penis into her anus. She was “bleeding profusely and experiencing extreme pain to the anal/vaginal area”. He covered her mouth to prevent her pleading for him to stop and continued to anally penetrate her. When he finally desisted she could only walk and crawl to an aunt’s house for help. The victim suffered bruising to her back, hips, shoulders, legs, knees, pelvis and arms, abrasions to her elbows and hips, soreness to the left side of her jaw, a loose tooth, lacerations to the anal area requiring suturing and a significant vaginal to perineum anal tear, comparable to a third degree tear after childbirth. She required intravenous morphine and surgery to repair the tear. The victim described in her police statement signed on 29 October 2001 how the applicant made comments during the assault such as “You fuckin deserve it” (para 13) and “You asked for this” (para 14). She described the pain as “way worse” than when she gave birth (para 14). When she bit him on the penis to try to make him desist, “It just made him go harder and it hurt more and more” (para 14).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HULME J

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Ratio Decidendi

Legal Principle Established

Established by: HULME J

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