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R v Manners

R v Manners

Case [2004] NSWCCA 181 2 July 2004

Aggravated & Exemplary Damages

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CITATION: REGINA v Andrew Robert MANNERS [2004] NSWCCA 181

HEARING DATE(S): 4/6/04

JUDGMENT DATE:
2 July 2004

JUDGMENT OF: Bell J at 1; Howie J at 36; Hislop J at 37

DECISION: Appeal dismissed

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: Everett v R (1994) 181 CLR 295
R v Baker [2000] NSWCCA 85
R v Burchell (1987) 34 A Crim R 148
R v Fitzgerald [2004] NSWCCA 5
Regina v Kain [2004] NSWCCA 143
R v Totten [2003] NSWCCA 207
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Veen (No 2) v The Queen (1988) 164 CLR 465

PARTIES :
REGINA (Appellant)
Andrew Robert MANNERS (Respondent)

FILE NUMBER(S): CCA 60031/04

COUNSEL: E Wilkins (Crown)
A P Cook (Respondent)

SOLICITORS: S Kavanagh
S O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0653

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

60031/04

BELL J
HOWIE J
HISLOP J
Friday 2 July 2004

REGINA v Andrew Robert MANNERS

Judgment

1 BELL J: This is an appeal brought by the Director of Public Prosecutions against the inadequacy of a sentence imposed by his Honour Judge Nield (the Judge) in the Sydney District Court on 18 December 2003.

2 The respondent was sentenced to a term of 6 years’ imprisonment to date from 8 February 2003 for an offence of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900. A non-parole period of 4 years and 3 months was specified.

3 The Judge sentenced the respondent upon the following facts:

“The facts relied upon by the Crown to prove the offender’s commission of the offence are these:

1. On a day between 28 March and 3 April 2002 the offender kissed the complainant on her lips and, after inserting one of his hands inside her pants, rubbed her buttocks with his hand. At this time the complainant was aged nearly ten years, her tenth birthday being on 3 April 2002.

2. On 5 May 2002 the offender again kissed the complainant on her lips and, after inserting one of his hands inside her pants, rubbed her buttocks with his hand.

3. On 27 July 2002 the offender exposed the complainant’s external genitalia by moving her pants to one side of her genitalia and, using a digital camera, photographed her genitalia and then displayed the photographs to her on his computer.

4. On occasions on a Saturday morning or a Thursday evening between 3 May and 23 October 2002 the offender kissed the complainant on her lips and, after inserting one of his hands under her pants, rubbed her external genitalia, her buttocks or her bottom with his hand.

5. On an occasion on a week day, other than a Thursday, between 3 May and 23 October 2002 the offender, after sitting the complainant on his lap and inserting one of his hands inside her pants, rubbed her…

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 Manners

Details

AGLC: Regina v Andrew Robert MANNERS [2004] NSWCCA 181
Case: [2004] NSWCCA 181
Decision Date: 2 July 2004

CaseChat Overview and Summary

In Regina v Andrew Robert Manners, the Crown appealed against the adequacy of the sentence imposed by the District Court on the respondent, who had been convicted of persistent sexual abuse of a child. The respondent, a registered sex offender, was sentenced to six years' imprisonment with a non-parole period of 4 years and 3 months for offences committed against a child under the age of ten. The Crown argued that the sentence was manifestly inadequate and did not reflect the objective seriousness of the offence, the protection of the community, or the need for adequate punishment. The Court considered the arguments and examined the reasoning of the primary judge, Judge Nield DCJ, who had taken into account various aggravating and mitigating factors in arriving at the sentence.

The Court concluded that the primary judge had not erred in his application of the principles of sentencing or in his assessment of the facts. The Crown's argument that the sentence was manifestly inadequate was found to be an assertion rather than a demonstration of error. The Court held that while the sentence may have been lenient, it fell within the range of the primary judge's discretion, particularly considering the 25% discount for the early plea of guilty. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders