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R v Pearson

R v Pearson

Case [2005] NSWCCA 116 20 April 2005

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Pleas of Guilty

Mistake of Fact

Criminal Law

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CITATION:
Regina v Pearson [2005] NSWCCA 116

HEARING DATE(S): 24/03/05

JUDGMENT DATE:

20 April 2005

JUDGMENT OF:
James J at 1; Hislop J at 85; Hall J at 86

DECISION:
Leave to appeal against sentences granted. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - sentence - aggravated indecent assault - using a child under fourteen years for pornographic purposes - principal in second degree to another doing something intending to hinder the investigation of a serious indictable offence - whether the sentencing judge took into account as an aggravating feature of the offence the complainant's vulnerability having regard to the complainant's age, when age was an element of the offence - whether insufficient weight given to pleas of guilty - whether mistake of fact in relation to criminal antecedents - whether findings of fact unsupported by any evidence - whether sentence was manifestly excessive

LEGISLATION CITED:

Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act

CASES CITED:
House v The King (1936) 55 CLR 499
The Queen v De Simoni (1981) 147 CLR 383
R v Astill (No. 2) (1992) 64 A Crim R 289
R v Castles [2005] NSWCCA 79
R v Cocking [1999] NSWCCA 311
R v Cramp [2004] NSWCCA 264
R v Hanslow [2004] NSWCCA 163
R v Ingrassia (1996) 41 NSWLR 447
R v Johnstone [2004] NSWCCA 307
R v Khouzame [2000] NSWCCA 505
R v Mohamadin [2004] NSWCCA 401
R v Scott [ 2003] NSWCCA 286
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193

PARTIES:
Regina v Sharon Mary Pearson

FILE NUMBER(S):
CCA 2004/3090

COUNSEL:
J Stratton SC - Applicant
D Woodburn - Respondent

SOLICITORS:
SE O'Connor - Solicitor for the Legal Aid
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0352

LOWER COURT JUDICIAL OFFICER:
English DCJ

2004/3090 CCAP

JAMES J
HISLOP J
HALL J
Wednesday 20 April 2005

REGINA v Sharon Mary PEARSON

Judgment

1 JAMES J: Sharon Mary Pearson applied for leave to appeal against sentences imposed on her in the District Court on 30 June 2004 by her Honour Judge English, after she had pleaded guilty to:-

(1) three counts of aggravated indecent assault, being offences under s 61M(1) of the Crimes Act for which the maximum penalty was imprisonment for seven years, the circumstances of aggravation relied on by the Crown being that the victim was under the age of sixteen years.

(2) one count of using a child under the age of fourteen years for pornographic purposes, an offence under s 91G(1) of the Crimes Act for which the maximum penalty was imprisonment for seven years.

Crimes Act

2 The victim…

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 Pearson

Details

AGLC: R v Pearson [2005] NSWCCA 116
Case: [2005] NSWCCA 116
Decision Date: 20 April 2005

CaseChat Overview and Summary

The matter before the court involved a criminal appeal by the respondent, Pearson, against his sentence and conviction. Pearson was found to be a principal in the second degree to another individual who committed acts of aggravated indecent assault using a child under the age of fourteen for pornographic purposes. Pearson was also convicted of hindering the investigation of a serious indictable offence. The appeal raised several issues, including whether the sentencing judge properly considered the complainant's vulnerability due to age as an aggravating feature of the offence, whether insufficient weight was given to Pearson's pleas of guilty, whether there was a mistake of fact regarding his criminal antecedents, whether certain findings of fact were unsupported by evidence, and whether the sentence was manifestly excessive.

The court examined whether the sentencing judge had appropriately considered the complainant's age as an aggravating factor, given that age was an integral element of the offence. The court also assessed if the judge had given adequate weight to Pearson's pleas of guilty. Furthermore, the court scrutinised whether there was a factual error regarding Pearson's criminal antecedents and if certain findings of fact were unsupported by the evidence presented. Lastly, the court deliberated on whether the sentence imposed was manifestly excessive, taking into account all the circumstances of the case.

In its decision, the court held that the sentencing judge did not sufficiently consider the complainant's age as an aggravating feature of the offence, and that insufficient weight was given to Pearson's pleas of guilty. The court found that there was no mistake of fact in relation to Pearson's criminal antecedents, and that the findings of fact were supported by the evidence. However, the court determined that the sentence was manifestly excessive, leading to a reduction in the sentence imposed on Pearson. The appeal was partly allowed, and the case was remitted to the sentencing court for reconsideration of the sentence.

Orders