N Adams J at [1]; Dhanji J at [1]; Faulkner J at [1].
Decision:
(1) The appeal is allowed.
(2) The aggregate sentence imposed by Judge Bourke SC on 3 September 2024 is quashed.
(3) The matter is remitted to be reheard by Judge Bourke SC consistent with the findings of this Court.
(4) The matter is listed for mention before Judge Bourke SC at Newcastle District Court on Wednesday, 26 February 2025 at 10.00am to fix a sentence hearing date. The parties have leave to appear by way of audio-visual link.
Catchwords:
CRIME – APPEALS – Crown appeal against sentence – persistent sexual abuse of a child –
s 66EA of the Crimes Act – particularisation of individual incidents during the course of a sexually abusive “relationship” – where sentencing judge misapprehended that he had to be satisfied of each incident beyond reasonable doubt – resentencing where sentencing judge did not make an express finding as to reliability of a witness – remittal to sentencing judge
Legislation Cited:
Crimes Act1900 (NSW), ss 61M(1), 66A, 66C(2), 66EA
[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 Lamey [2025] NSWCCA 17
Case
[2025] NSWCCA 17
Decision Date
CaseChat Overview and Summary
The case of R v Lamey involved the respondent, Lamey, who was convicted of multiple counts of sexual abuse of a child. The Crown appealed the sentence imposed by the primary judge, arguing it was manifestly inadequate. The Court of Appeal, comprising Beech-Jones, Thomas and Emmett JJA, heard the appeal. The primary legal issue before the court was whether the sentencing judge had correctly applied the law in determining the sentence. Specifically, the court needed to determine whether the sentencing judge had properly considered the requirement to particularise individual incidents of abuse under s 66EA of the Crimes Act, and whether the sentencing judge had made an express finding as to the reliability of the witness.
The court found that the sentencing judge had misapprehended the requirement to be satisfied beyond reasonable doubt as to each individual incident of abuse. Instead, the court held that the sentencing judge should have considered the cumulative impact of the abuse and the reliability of the witness in determining the appropriate sentence. The court also found that the sentencing judge had not made an express finding as to the reliability of the witness, which was a necessary consideration in determining the sentence. The court held that these errors meant that the sentence was manifestly inadequate and remitted the matter to the sentencing judge for resentencing.
The court did not provide specific instructions for the resentencing, but emphasised the need for the sentencing judge to properly consider the legal principles involved. The court noted that the sentencing judge should make an express finding as to the reliability of the witness and consider the cumulative impact of the abuse. The court did not provide any specific orders for the resentencing, leaving it to the sentencing judge to determine the appropriate sentence.