R v JFR - [2002] NSWCCA 9

CITATION: R v JFR [2002] NSWCCA 9

FILE NUMBER(S): CCA 60256/01

HEARING DATE(S): 26 November 2001

JUDGMENT DATE:
11 February 2002

PARTIES :

Regina
JFR

JUDGMENT OF: Hidden J at 1; Newman AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/51/0193

LOWER COURT JUDICIAL
OFFICER : Ducker DCJ

COUNSEL : W. Dawe QC (Crown)
M. Ramage QC (Appellant)

SOLICITORS: DPP (Crown)
Pickering Priestley (Appellant)

CATCHWORDS: CRIMINAL LAW - sexual offence - appeal against sentence - age and health of appellant - whether appropriate to sentence on standards at time of commission of offence - where long delay between the commission of offence and conviction - statutory trigger for resentencing

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

CASES CITED:
R v Simpson [2001] NSWCCA 534

DECISION: Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60256/01

HIDDEN J

NEWMAN AJ

Monday, 11 February 2002

R v JFR

JUDGMENT

1 HIDDEN J: I agree with Newman AJ.

2 NEWMAN AJ: This is an application for leave to appeal against sentences of imprisonment passed upon the applicant by Ducker DCJ at Lismore Court on 23 April 2001.

3 The applicant had pleaded guilty before the Local Court on 28 November 2000 to six counts of indecent assault pursuant to the then extant s76 of the Crimes Act 1900. He maintained his plea before the learned District Court judge. Section 76 of the Crimes Act as it stood at the time of the commission of the offences provided for a maximum penalty of five years imprisonment for the offence of indecent assault. Section 76 has been repealed for many years and has been replaced by a comprehensive legislative scheme dealing with sexual offences. However, as I have said, at the time of the commission of the offences s76 represented the law. Accordingly, there was no issue in this application that his Honour was correct in applying s76 to the facts of this case when sentencing.

4 The six counts of indecent assault related to events which took place between 8 December 1960 and 11 March 1964.

5 In the event his Honour imposed a sentence constructed as follows:

As to counts six and one his Honour imposed a term of imprisonment for 15 months commencing on 23 April 2001 and expiring on 22 July 2002. On those counts he imposed a non-parole period of seven months commencing on 23 April 2001 and expiring on 22 November 2001.

On count three he imposed a term of imprisonment of two years to commence on 22 November 2001 and to expire on 21 November 2003. This instance he imposed a non-parole period of 12 months commencing on 22 November 2001 and expiring on 21 November 2002.

For counts two, four and five of the indictment his Honour imposed a term of imprisonment of 15 months commencing on 21 November 2001 and expiring on 20 February 2003. Here he imposed a non-parole period of seven months commencing…

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.

Keep reading for free

Create a free CaseChat account to read R v JFR and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCCA 9
Decision Date: 11 February 2002

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v JFR concerns an appeal against the sentence imposed on the appellant, who was convicted of a sexual offence. The appellant argued that the trial judge had not properly considered his age and health when imposing the sentence, and that the sentence was inappropriate given the long delay between the commission of the offence and his conviction. The Crown argued that the sentence was appropriate and that the trial judge had considered all relevant factors.

The legal issues before the court were whether the trial judge had erred in not considering the appellant's age and health at the time of sentencing, and whether the sentence was appropriate given the long delay between the commission of the offence and the conviction. The court noted that while the appellant's age and health were relevant factors to be considered in sentencing, they were not the only factors to be taken into account. The court also noted that the delay between the commission of the offence and the conviction was a relevant factor, but that it did not necessarily mean that the sentence should be reduced.

The court found that the trial judge had not erred in not considering the appellant's age and health at the time of sentencing, as these factors had been considered by the trial judge in the context of the other relevant factors. The court also found that the sentence was appropriate, given the seriousness of the offence and the need for deterrence and denunciation. The court noted that while the delay between the commission of the offence and the conviction was a relevant factor, it did not necessarily mean that the sentence should be reduced.

The appeal was dismissed, and the original sentence was upheld. The court also noted that the statutory trigger for resentencing did not apply in this case, as the appellant had not been convicted of a new offence since the original sentence was imposed.

Orders