R v O - [2005] NSWCCA 327

CITATION:
Regina v O [2005] NSWCCA 327

HEARING DATE(S): 25 August 2005

JUDGMENT DATE:

16 September 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 59; Hall J at 63

DECISION:
Crown appeal against sentence allowed; Sentences passed in District Court quashed; Sentenced in lieu - see judgment

LEGISLATION CITED:

Crimes Act 1900 (NSW)

CASES CITED:
Reg v Dent 14 March 1991 (unreported)

PARTIES:
Regina
O

FILE NUMBER(S):
CCA 2005/910

COUNSEL:
P. Miller - Crown
G. Gartelmann - Respondent

SOLICITORS:
Director of Public Prosecutions
Legal Aid of NSW

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3361

LOWER COURT JUDICIAL OFFICER:
Williams DCJ

2005/910

SULLY J
HIDDEN J
HALL J
Friday 16 September 2005

REGINA v O

Judgment

SULLY J:

(1) that there be no publication of the name of the respondent or of any matter that would identify him;
(2) that the respondent be referred to in any record of these proceedings as “O”;
(3) that the names of the victims, and any material apt to identify them, or any of them, are not to be published;
(4) that the victims be referred to in any record of these proceedings as, respectively, “KW”, “JS” and “TS”.
Introduction

1 This is a Crown appeal against sentence.

2 In July 2004 the respondent stood trial by jury in the District Court. There were two separate trials, the first taking place from 19 to 23 July; and the second taking place from 26 to 28 July.

3 In the first trial the respondent faced four charges of serious sexual assault offences. Three charges alleged sexual intercourse with the victim KW, being then a child aged 5 or 6 years. The fourth charge alleged a further act of sexual intercourse with that victim, being then a child aged 8 years. Each such offence contravened section 66A of the Crimes Act 1900 (NSW) and attracted upon conviction a statutory maximum penalty of imprisonment for 20 years.

4 At this first trial the respondent pleaded not guilty to all four charges. He was found guilty on the fourth charge; and the jury was unable to agree upon a verdict in any of the other three matters.

5 At the second trial the respondent was charged with two counts of aggravated indecent assault upon the victim JS. He pleaded not guilty to each charge; but the jury found him guilty in each case.

6 It was proposed to present the respondent for re-trial upon the three charges as to which the jury at the first trial had been unable to agree; but in October 2004 the respondent pleaded guilty to one charge of sexual intercourse with KW, being then a child aged 5 or 6 years; and he asked that there be taken into account a charge of aggravated indecent assault upon the victim TS, being then a child aged 6 years.

7 Each of the charges of aggravated indecent assault of which the…

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 O

Details

AGLC: Regina v O [2005] NSWCCA 327
Case: [2005] NSWCCA 327
Decision Date: 16 September 2005

CaseChat Overview and Summary

This appeal concerns the sentence imposed on the respondent following his convictions for serious sexual offences against children. The Court of Criminal Appeal was asked to decide whether the sentence imposed was manifestly inadequate. The respondent was sentenced to an effective head sentence of 4 years and an effective non-parole period of 2 years. The Court found that the sentence was manifestly inadequate and re-sentenced the respondent to an effective head sentence of 5 years and an effective non-parole period of 2.5 years. However, the Court acknowledged that the extent to which it could intervene was constrained by the principles relating to re-sentencing on a Crown appeal, as well as the respondent's age and health. The Court ultimately decided not to allow the appeal, finding that the increases in sentence proposed were modest and not appropriate in the circumstances.

Orders