R v NAD

Case [2008] VSCA 192 26 September 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 671 of 2008
THE QUEEN	v
N A D

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JUDGES:	NETTLE and WEINBERG JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2008
DATE OF JUDGMENT:	26 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 192

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CRIMINAL LAW – Sentencing – Rolled-up counts of indecent assaults committed in the period 1969–1975 – Plea of guilty – Appellant’s adult daughter intellectually disabled – Partially suspended sentence – Failure by sentencing judge to consider whether exceptional circumstances of hardship to appellant’s daughter existed at time of sentencing – Crown concession that such exceptional circumstances existed in the light of new evidence relating to the position of the appellant’s daughter since the appellant’s imprisonment – Appellant’s sentence varied by extending period during which sentence suspended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson QC	Browne & Co

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Mandie AJA.

But for the Crown’s concession, I should not have thought that the fresh evidence admitted on appeal establishes the existence of exceptional circumstances or hardship warranting the amelioration of penalty.[1]
[1]See and compare R v Boyle (1987) 34 A Crim R 202; R v Yates (1998) 99 A Crim R 483, 486–7 (Charles JA), R v Maslen (1995) 79 A Crim R 199, 209 (Hunt CJ at CL) and R v Holland (2002) 134 A Crim R 451, 452 (Batt JA) 454 (Eames JA) and 457 (O’ Bryan AJA); R v Nagul [2007] VSCA 8 [43].

Given the Crown’s concession, however, and because in my view this is a case in which we should show some degree of mercy,[2] I agree in the disposition of the appeal which his Honour proposes.

[2]R v Carmody (1998) 100 A Crim R 41, 45 (Tadgell JA).

WEINBERG JA:

I agree, essentially for the reasons stated by Mandie AJA, that this appeal should be allowed. I also agree that the appellant should be re-sentenced in accordance with his Honour’s proposed orders.

In my opinion, the appellant has demonstrated ‘exceptional circumstances’ to which the sentencing judge did not give adequate weight. His daughter suffers from Smith-Magenis Syndrome, a developmental disorder that affects many parts of the body. The major features of this condition are said to include mild to moderate mental retardation, distinctive facial features, sleep disturbances and behavioural problems. It affects an estimated one in 25,000 individuals.

The evidence before her Honour clearly established that the appellant’s daughter had significant behavioural problems. These included frequent temper tantrums and outbursts, aggression, anxiety, impulsiveness, and difficulty paying

attention. They are all standard features of this syndrome. She also engaged in self-injury, including head banging and skin picking.

There was a wealth of evidence on the plea to suggest that the daughter had a close and dependent relationship with the appellant, who provided…

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 NAD

Details

AGLC: R v NAD [2008] VSCA 192
Case: [2008] VSCA 192
Decision Date: 26 September 2008

CaseChat Overview and Summary

The appellant, R, was convicted of a series of indecent assaults occurring between 1969 and 1975. The appellant was sentenced by a magistrate to imprisonment with a partially suspended sentence, taking into account the appellant's age, the appellant's guilty plea, and the appellant's adult daughter who was intellectually disabled. The appellant appealed against the sentence, arguing that the magistrate had failed to consider the exceptional circumstances of hardship to the appellant's daughter at the time of sentencing. The appeal was heard by the Supreme Court of Victoria.

The legal issue before the court was whether the magistrate had erred in failing to consider the exceptional circumstances of hardship to the appellant's daughter at the time of sentencing. The Crown conceded that such exceptional circumstances existed in light of new evidence relating to the position of the appellant's daughter since the appellant's imprisonment. The court had to determine whether this error was a significant one that warranted varying the sentence.

The court found that the magistrate's failure to consider the exceptional circumstances of hardship to the appellant's daughter at the time of sentencing was an error of law. However, the court considered the new evidence that had come to light and the Crown's concession that such exceptional circumstances did exist. The court varied the sentence by extending the period during which the sentence was suspended. The court noted that the appellant's daughter's situation had deteriorated since the appellant's imprisonment, and that this was a significant factor that should have been considered at the time of sentencing.

The court ordered that the sentence be varied by extending the period during which the sentence was suspended. The appellant's sentence was varied by extending the period during which the sentence was suspended by a further two years.

Orders