Garling J at [1]; Adamson J at [2]; N Adams J at [3].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – appeal against aggregate sentence imposed after trial - indecent assaults by tutor on two students - where sentencing judge declined to find special circumstances - whether sentencing judge erred in not providing sufficient reasons for declining to find special circumstances - no error established - application for leave granted - appeal dismissed
CRIME – aggravated indecent assault - where victims under the authority of the applicant - where two victims between the age of 16 and 18 years old
Wayne Kenneth Pickard (Applicant) Rex (Respondent Crown)
Representation:
Counsel: Mr N Adams SC (Applicant) Ms E Wilkins SC (Respondent Crown)
Solicitors: Paul A. Brown & Co. Solicitors (Applicant) Solicitor for Public Prosecutions NSW (Respondent Crown)
File Number(s):
2018/328928
Publication restriction:
Non-publication order regarding the identity of the complainants and anything that may tend to identify them.
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
19 June 2020
Before:
Sutherland SC DCJ
File Number(s):
2018/328928
JUDGMENT
GARLING J: I agree with the orders proposed by N Adams J, and with her Honour’s reasons.
ADAMSON J: I agree with N Adams J.
N ADAMS J: By notice of appeal filed 9 June 2022 the applicant, Wayne Kenneth Pickard, seeks leave to appeal against the aggregate sentence imposed on him by Judge Sutherland SC on 19 June 2020 in relation to 17 aggravated indecent assaults committed contrary to s 61M(1) of the Crimes Act1900 (NSW). The assaults were committed on two separate victims who were both High School students the applicant tutored for their Higher School Certificate (“HSC”) examinations. The circumstance of aggravation was that the victims (who were both over the age of 16 and under the age of 18 years) were under the authority…
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.
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Details
AGLC
R v Pickard [2023] NSWCCA 7
Case
[2023] NSWCCA 7
Decision Date
CaseChat Overview and Summary
The case of R v Pickard involved an appeal against the aggregate sentence imposed after a trial for indecent assaults by a tutor on two students. The appellant, who had been found guilty of these assaults, argued that the sentencing judge had erred in not finding special circumstances, which would have warranted a reduced sentence. The appeal was heard by the court, which was required to determine whether the sentencing judge had erred in not providing sufficient reasons for declining to find special circumstances. The court also needed to consider whether the imposition of an aggregate sentence was appropriate, given the nature and circumstances of the offences.
The court examined the evidence and submissions presented to determine if the sentencing judge had correctly exercised his discretion. It found that the judge had adequately considered the relevant factors and had provided sufficient reasons for declining to find special circumstances. The court concluded that the sentencing judge's decision was within the range of acceptable outcomes and that no error had been established in the assessment of the sentence. The appeal was thus dismissed, with the court affirming the aggregate sentence imposed by the trial judge.
The court's reasoning emphasised the importance of judicial discretion in sentencing and the need for thorough consideration of the circumstances of each case. The decision highlighted the court's role in ensuring that sentences are proportionate and reflect the gravity of the offences committed. The final orders of the court confirmed the dismissal of the appeal and the maintenance of the sentence as originally imposed.