R v PC

Case [2022] NSWCCA 59 25 March 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v PC [2022] NSWCCA 59
Hearing dates: 4 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Before: Davies J at [1]
Bellew J at [2]
Fagan J at [15]
Decision:
(1)   Allow the appeal on grounds 1 and 2.
(2)   Quash the sentences imposed by his Honour Judge M Williams SC on 5 November 2021.
(3)   In lieu thereof the respondent is sentenced to an aggregate term of imprisonment of 2 years commencing on 25 March 2022 comprising a non-parole period of 1 year and 6 months commencing on 25 March 2022 and expiring on 24 September 2023 and a balance of term of 6 months commencing on 25 September 2023 and expiring on 24 March 2024.
(4)   The respondent will be entitled to be released to parole at the expiry of the non-parole period on 24 September 2023.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of specific error – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where sentencing judge found that the requirement of the respondent to register under the Child Protection (Offenders Registration) Act 2000 (2000) was a form of extra-curial punishment and thus a mitigating factor on sentence – Error made out
CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of manifest inadequacy of sentence – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where a Community Corrections Order was imposed by the sentencing judge in respect of each offence – Absence of remorse and no acceptance of responsibility on the part of the respondent – Little basis in those circumstances to find that the respondent had excellent prospects of rehabilitation – Error in finding that the respondent’s motivation for the offending was not purely sexual – Error in finding that the offending was impulsive – Displacement between other findings and the sentence which was imposed – Respondent re-sentenced to a term of imprisonment
CRIMINAL LAW – Practice and procedure – Sentence – Appeal – Crown appeal – Where submission made that the Crown had not assisted the sentencing judge other than by making a “bald assertion” that a sentence of imprisonment was appropriate – Where submission made that conduct of the Crown on sentence had contributed to the imposition of a manifestly inadequate sentence – Suggestion that the Crown had played a part in the imposition of a manifestly inadequate sentence rejected – Where submission made that the Crown should have specifically put to the sentencing judge what the appropriate indicative sentences were – Conclusion that such an approach would have been contrary to authority – No failure on the part of the Crown to…

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 PC

Details

AGLC: R v PC [2022] NSWCCA 59
Case: [2022] NSWCCA 59
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of R v PC involves the respondent, who was found guilty of multiple counts of indecent assault on his stepdaughter, who was between 13 and 15 years old at the relevant time. The appeal was brought by the Crown on the basis of specific errors made by the sentencing judge and the manifest inadequacy of the sentence. The sentencing judge had imposed a Community Corrections Order for each offence, which was contested by the Crown as being manifestly inadequate given the absence of remorse and acceptance of responsibility by the respondent.

The legal issues before the court were whether the sentencing judge erred in considering the requirement for the respondent to register under the Child Protection (Offenders Registration) Act 2000 as a mitigating factor and whether the sentence imposed was manifestly inadequate. The court found that the sentencing judge had indeed erred in treating the registration requirement as a mitigating factor, as it constituted an extra-curial punishment. Additionally, the court held that the sentence was manifestly inadequate due to the absence of remorse and the lack of acceptance of responsibility by the respondent, which undermined the sentencing judge's findings regarding the respondent's prospects for rehabilitation and the nature of the offending. The court also rejected the suggestion that the Crown had failed to properly assist the sentencing judge on the matter of sentence.

The respondent was re-sentenced to a term of imprisonment by the appellate court. The court also noted the obligations imposed by section 15A(1)(a) of the Children Criminal Proceedings Act 1987 (NSW) and the effect of restrictions on the publication of an offender's name on general deterrence. The court concluded that there was no failure on the part of the Crown to properly assist the sentencing judge, and that the Crown's conduct did not contribute to the imposition of a manifestly inadequate sentence.

Orders