R v Neville - [2018] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Neville [2018] NSWCCA 125
Hearing dates: 14 May 2018
Date of orders: 22 June 2018
Decision date: 22 June 2018
Before: Beazley P, Button and Fagan JJ
Decision:
Allow the appeal.
The aggregate sentence for counts 1A and 1-5 imposed by his Honour Judge Ingram SC on 16 February 2018 is quashed.
In lieu thereof for the offences in counts 1A and 1-5 the respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of 10 years commencing on 4 May 2017 and expiring on 3 May 2027 and a balance of term of 5 years commencing on 4 May 2027 and expiring on 3 May 2032.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – adequacy of sentence – sexual intercourse with child under 10 years, using a child for pornographic purposes and possession of child pornography contrary to Crimes Act 1900 (NSW), s 66A, 91G, 91H – complainants were daughters of offender under his parental authority and care – plea of guilty for charge of possession of child pornography – found guilty after trial on other charges – where no remorse nor acceptance of responsibility demonstrated – whether sentence manifestly inadequate – whether “special circumstances” within meaning of Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 – appeal allowed and offender resentenced
Legislation Cited: Crimes Act 1900 (NSW) s 91H(2), s 91G(1)(a), 66A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 9, s 44
Cases Cited: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Category: Principal judgment
Parties: Regina (applicant)
Neville (a pseudonym) (respondent)
Representation:
Counsel:
N J Adams (applicant)
A Francis (respondent)
Solicitors:
Solicitor for the Director of Public Prosecutions (applicant)
Bayside Lawyers (respondent)

File Number(s): 2012/029715; 2014/181274
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

16 February 2018

Before:

Ingram SC DCJ

File Number(s):

2012/029715; 2014/181274

Judgment

THE COURT: The Crown appeals against an aggregate sentence passed on the respondent by his Honour Judge Ingram SC in the District Court on 16 February 2018. The sole ground is that the sentence is manifestly inadequate. The Notice of Appeal was filed and served on 8 March 2018. Having regard to the nature of the offences and the need to protect the complainants from identification, the respondent is referred to in the title of this judgment by a pseudonym.
The sentence was for three offences of sexual intercourse with a child under 10 years and three offences concerning child pornography. The respondent had pleaded guilty to one count of possession of child pornography (count 1A). He was convicted of the other offences after a trial of several weeks in September, October and November 2017. An aggregate sentence of 13 years imprisonment including a non-parole period of 8 years and 6 months was imposed. This was ordered to commence from 4…

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 Neville

Details

AGLC: R v Neville [2018] NSWCCA 125
Case: [2018] NSWCCA 125
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the case of R v Neville, the respondent was found guilty of engaging in sexual acts with his daughters under the age of ten, using them for pornographic purposes, and possessing child pornography, in contravention of the Crimes Act 1900 (NSW), sections 66A, 91G, and 91H. The Crown appealed against the sentence imposed by the trial judge, arguing it was manifestly inadequate. The respondent had pleaded guilty to the charge of possessing child pornography but was found guilty of the other charges after a trial. The trial judge did not perceive the respondent as remorseful or accepting responsibility for his actions. The central legal issues the court had to address were whether the original sentence was manifestly inadequate and if there were any "special circumstances" as defined by section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court examined the severity and nature of the crimes, the absence of remorse, and the relationship between the offender and the victims. The court found that the sentence did not adequately reflect the gravity of the offences, particularly given the familial relationship and the respondent's lack of remorse. The court determined that the trial judge had not fully considered the need for general deterrence and the principles of denunciation. The court concluded that the sentence was manifestly inadequate and found that the relationship between the offender and the victims constituted a special circumstance warranting a more severe sentence. Consequently, the Crown's appeal was allowed, and the respondent was resentenced.

Orders