McClellan CJatCL at 1; Howie J at 2; Harrison J at 79
DECISION:
1. Appeal is allowed. 2. The sentences imposed in the District Court except that imposed for Count 6 are quashed and the respondent sentenced as follows: Count 1: a fixed term of 12 months to date from 17 September 2009 and to expire on 16 September 2010. Count 2: a fixed term of 8 months to commence on 17 July 2010 and expire on 16 March 2011. Count 3: a fixed term of 12 months to commence on 17 March 2011 and expire on 16 March 2012. Count 4: a fixed term of 6 months to date from 17 June 2011 and expire on 16 December 2011 Count 5: a fixed term of 12 months to date from 17 September 2011 and expire on 16 September 2012. Count 7: a fixed term of 8 months to date from 17 September 2012 and to expire on 16 May 2013. Count 8: a term of 3 years 9 months from 17 May 2013. This is made up of a non-parole period of 1 year 10 months to expire on 16 March 2015, being the date upon which the respondent is eligible to be released to parole. There is a balance of term of 1 year 11 months to commence on 17 March 2015.
CATCHWORDS:
CRIMINAL LAW - Sentence - Crown appeal - offences of child sexual assault and pronography - whether sentences severally and in totality manifestly inadequate - whether judge erred in taking into account effects of protective custody - whether error in application of discount for guilty pleas - whether established pattern of sentencing for child sexual assault offences in 1970s - whether error in failing to accumulate some sentences - whether error in finding facts
LEGISLATION CITED:
Criminal Appeal Rules - r 76 Crimes Appeal and Review Act 2001 - s 68A
S Kavanagh - Crown John Anthony Solicitors - Respondent
LOWER…
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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Details
AGLC
R v Jarrold [2010] NSWCCA 69
Case
[2010] NSWCCA 69
Decision Date
CaseChat Overview and Summary
In the matter of R v Jarrold, the respondent was convicted of multiple counts of child sexual assault and possession of child pornography. The Crown appealed the sentences imposed by the trial judge, arguing they were manifestly inadequate. The case was heard in the Court of Appeal, which had to determine whether the sentences were severally and in totality manifestly inadequate. The court also had to consider whether the judge erred in taking into account the effects of protective custody on the sentences, and if there was an error in applying a discount for the respondent's guilty pleas. Additionally, the court examined whether there was an established pattern of sentencing for child sexual assault offences in the 1970s, whether there was an error in failing to accumulate some sentences, and if there was an error in the finding of facts.
The court held that the sentences imposed by the trial judge were severally and in totality manifestly inadequate. The court found that the judge had erred in taking into account the effects of protective custody, which was not a proper consideration in determining the sentences. The court also held that there was an error in the application of the discount for guilty pleas, as the discount should have been greater. The court further found that there was no established pattern of sentencing for child sexual assault offences in the 1970s, and that there was an error in failing to accumulate some sentences. Finally, the court found that there was no error in the finding of facts.
The Court of Appeal quashed the sentences imposed by the trial judge and remitted the matter to the trial judge for resentencing. The court held that the trial judge should consider the principles of totality and proportionality in determining the sentences, and should not take into account the effects of protective custody. The court also held that the trial judge should apply a greater discount for the respondent's guilty pleas, and should accumulate some of the sentences. The Court of Appeal did not specify the appropriate sentences, leaving that decision to the trial judge.