R v ND

Case [2016] NSWCCA 103 2 June 2016

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v ND [2016] NSWCCA 103
Hearing dates: 23 May 2016
Date of orders: 02 June 2016
Decision date: 02 June 2016
Before: Payne JA
Price J
Garling J
Decision:
(1) Appeal upheld.
(2) Sentence of the District Court (Norton SC DCJ) imposed on 6 November 2015 be quashed.
(3) In lieu thereof, for the offence against s 66A of the Crimes Act, the respondent be sentenced to a non-parole period of 4 years commencing on 6 November 2015 and expiring on 5 November 2019, with a balance of term of 2 years expiring on 5 November 2021.

Catchwords: CRIMINAL LAW – Crown appeal against sentence –whether sentence manifestly inadequate – sexual intercourse with a child under the age of 10 years – s 66A Crimes Act 1900 (NSW) – whether sentencing Judge correctly assessed the objective seriousness of the offence – role of general deterrence, specific deterrence and denunciation
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Corby v R [2010] NSWCCA 146
Dousha v R [2008] NSWCCA 263
EG v R [2015] NSWCCA 21
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
MLP v R [2006] NSWCCA 271
PGM v R [2008] NSWCCA 172 at [43]-[44]
R v Simpson [2001] NSWCCA 534
R v Stoupe [2015] NSWCCA 175,
SW v R [2013] NSWCCA 255
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Regina (Applicant)
ND (Respondent)
Representation:
Counsel:
H Baker (Crown)
S Fraser (Respondent
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Respondent)

File Number(s): 2013/352176
Publication restriction: The names of the respondent, the victim, the victim’s mother and the respondent’s wife are not to be published. Any description of the evidence or any other material which may lead to their identification is not to be published.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 November 2015

Before:

Norton SC DCJ

File Number(s):

2013/352176

Judgment

THE COURT: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed in the District Court by her Honour Judge Norton SC on 6 November 2015.
The respondent, ND, was convicted by a jury on 3 September 2015 of an offence contrary to s 66A of the Crimes Act 1900, namely sexual intercourse with a child under the age of 10 years. He pleaded not guilty to the offence.
Judge Norton sentenced the respondent to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 8 months, commencing on 6 November 2015.
At the time of sentence, the maximum penalty for the offence was imprisonment for 25 years. A standard non-parole period of 15 years applied.

Facts

The facts, as set out by Norton SC DCJ in her Remarks on Sentence, may be summarised as follows.
The respondent was born on 24…

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 ND

Details

AGLC: R v ND [2016] NSWCCA 103
Case: [2016] NSWCCA 103
Decision Date: 02 June 2016

CaseChat Overview and Summary

In the case of R v ND, the appellant was convicted of engaging in sexual intercourse with a child under the age of 10 years, contrary to section 66A of the Crimes Act 1900 (NSW). The Crown appealed the sentence imposed by the trial Judge, arguing it was manifestly inadequate. The Court of Criminal Appeal was tasked with determining whether the sentence was objectively unjust and whether the trial Judge correctly assessed the objective seriousness of the offence.

The central legal issues before the Court of Criminal Appeal were whether the trial Judge had correctly evaluated the objective seriousness of the offence, and whether the sentence imposed was manifestly inadequate. This involved an examination of the principles of general deterrence, specific deterrence, and denunciation in the context of the crime committed. The Court had to assess whether the sentence adequately reflected the gravity of the offence and the need to protect the community and the child involved.

The Court of Criminal Appeal considered the trial Judge's assessment of the objective seriousness of the offence, which included the inherent gravity of the crime, the vulnerability of the victim, and the need to protect the community. The Court noted that the trial Judge had considered these factors but found that the sentence imposed did not adequately reflect the objective seriousness of the offence. The Court emphasised the importance of general deterrence and the need to send a strong message about the unacceptability of such crimes. The Court concluded that the sentence was manifestly inadequate and ordered that a new sentence be imposed by the trial Judge.

Orders