R v JP

Case [2015] NSWCCA 267 9 October 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v JP [2015] NSWCCA 267
Hearing dates: 24 September 2015
Decision date: 09 October 2015
Before: Hoeben CJ at CL at [1]
Price J at [75]
Button J at [86]
Decision:
Crown appeal dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – one count of sexual intercourse with child under 10 under authority contrary to s 66A(2) Crimes Act 1900 – two further offences of production and dissemination of child abuse material under s 91H(2) of the Crimes Act 1900 on a Form 1 – victim aged 6 weeks – offender mother of victim – offender suffering from intellectual disability – offender isolated and vulnerable at time of offending – whether open to sentencing judge to characterise the objective seriousness of the offending as “at the very bottom of the range of crimes of this nature” – assessment of objective seriousness of offending by sentencing judge in error – offending objectively very serious – subjective case important but error in sentencing judge not imposing a custodial sentence – suspended sentence manifestly inadequate – residual discretion should be applied – Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 66A(2), s 91H(2),
Crimes (Sentencing Procedure) Act 1999 – s 3A(f), s 32
Criminal Appeal Act 1912 – s 5D, 5E(1)
Criminal Procedure Act 1986 – ss 165 - 167
Cases Cited: Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
Attorney General’s Application under Section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Hoskins v R [2015] NSWCCA 245
Markarian v R [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
Muldrock v R [2011] HCA 39; 244 CLR 120
EG v R [2015] NSWCCA 21
R v Dinsdale [2000] HCA 54; 202 CLR 321
R v Muldrock; Muldrock v R [2012] NSWCCA 108
Williams v R [2012] NSWCCA 172
Category: Principal judgment
Parties: Regina – Applicant
JP - Respondent
Representation:
Counsel:
Ms T Smith – Applicant Crown
Ms B Rigg SC - Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
Legal Aid of NSW – Respondent

File Number(s): 2014/69737
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 April 2015

Before:

Haesler SC DCJ

File Number(s):

2014/69737

Judgment

HOEBEN CJ at CL:

Offence and sentence

The respondent pleaded guilty in the Local Court to one count of sexual intercourse with a child under 10 and under authority, contrary to s 66A(2) of the Crimes Act 1900. This offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

Two further offences…

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 JP

Details

AGLC: R v JP [2015] NSWCCA 267
Case: [2015] NSWCCA 267
Decision Date: 09 October 2015

CaseChat Overview and Summary

The case of R v JP involved the appellant, the mother of a six-week-old child, who was convicted of one count of sexual intercourse with a child under the age of 10 years, under authority contrary to section 66A(2) of the Crimes Act 1900, as well as two further offences of production and dissemination of child abuse material under section 91H(2) of the same Act. The appeal was brought by the Crown against the sentence imposed by the sentencing judge. The appellant was the mother of the child victim and had an intellectual disability. She was considered isolated and vulnerable at the time of the offending. The Crown argued that the sentencing judge erred in characterising the objective seriousness of the offending as being "at the very bottom of the range of crimes of this nature".

The central legal issue before the court was whether the sentencing judge's characterisation of the objective seriousness of the offending was in error, and if so, whether this error warranted a different outcome. The Crown submitted that the objective seriousness of the offending was much higher, given the young age of the victim and the nature of the crimes. The appellant's legal team argued that the sentencing judge had correctly considered the objective seriousness of the offending, and that the subjective circumstances of the appellant warranted a non-custodial sentence. The court had to weigh these arguments and determine if the error in characterisation led to a manifestly inadequate sentence.

The court found that the sentencing judge had indeed erred in characterising the objective seriousness of the offending, as it was not at the very bottom of the range of crimes of this nature. The court considered the subjective circumstances of the appellant but held that the error in the assessment of objective seriousness meant that the sentence imposed was manifestly inadequate. The court emphasised that the subjective circumstances, while important, did not justify the sentence imposed. The Crown's appeal against sentence was ultimately dismissed, as the court found that the residual discretion should be applied, and the original sentence was not manifestly inadequate in light of the correct characterisation of the objective seriousness of the offending.

The court ordered that the case be remitted to the sentencing judge to re-assess the sentence, taking into account the correct characterisation of the objective seriousness of the offending. This ruling highlights the importance of accurately assessing the objective seriousness of an offence when sentencing, particularly in cases involving very serious crimes against vulnerable victims.

Orders