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 J22 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…
Continue reading R v J L C-H
Sign in free to access the full text
- AGLC
- R v J L C-H [2004] NSWCCA 70
- Case
- [2004] NSWCCA 70
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: HULME J
Full text does not contain this section.