R v Presta - [2000] NSWCCA 40

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Presta [2000] NSWCCA 40

FILE NUMBER(S):
60688/98

HEARING DATE(S): Monday 21 February 2000

JUDGMENT DATE: 21/02/2000

PARTIES:
Regina v Bruno Presta

JUDGMENT OF: Grove J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/2046

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
M. Grogan (Crown)
W.G. Roser (Appellant)

SOLICITORS:
S.E. O'Connor (Crown)
T.A. Murphy (Appellant)

CATCHWORDS:
Criminal Law and Procedure
Kidnapping and Aggravated Sexual Assault
Multiple Victims
Sadism
Sentence

LEGISLATION CITED:
Crimes Act 1900 s90A; s439(2)

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60688/98

GROVE J
GREG JAMES J

Monday 21 February 2000

REGINA v BRUNO PRESTA

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by O'Reilly DCJ.

2 The appellant appeared before his Honour, committed for sentence following pleas of guilty to five counts of kidnapping and 21 counts of aggravated sexual assault. As well, his Honour was asked to take into account on a Form 1 a further ten offences of a variety of kinds. The principal charges involved five victims. The offences on the Form 1 involved two further victims, one of an assault occasioning actual bodily harm and another of homosexual intercourse without consent with a victim aged fifteen years.

3 The learned sentencing judge imposed sentences as follows: Upon the kidnapping counts, Fixed concurrent terms of fourteen years penal servitude, and upon all of the aggravated sexual assault counts Fixed terms of fourteen years and three months with the exception of one count, number 25, upon which his Honour imposed a total sentence of nineteen years penal servitude, divided into a Minimum Term of fourteen years three months with an Additional Term of four years nine months. It follows that the effective order for custody was that the appellant would have a Fixed or Minimum term of fourteen years three months with an Additional Term of nine months as I have indicated.

4 It is appropriate in this appeal to make some preliminary observations. The first is that this application has been directed pursuant to s 6AA of the Criminal Appeal Act to be heard by a bench consisting of two judges. Such direction is given where the appeal is not likely to require the resolution of a disputed issue of general principle. In my view, although some matters have been raised, for the reasons to which I will come it is not necessary for this court to resolve any such issue.

5 The second preliminary observation I would make relates to the first argument advanced on behalf of the appellant which was couched in terms asserting that his Honour erred in ascertaining the facts upon which the appellant was to be sentenced. An examination of the transcript shows that what happened was that at the hearing before the learned primary judge there was tendered a document containing the facts alleged against the appellant in respect of the charges. That…

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 Presta

Details

AGLC: R v Presta [2000] NSWCCA 40
Case: [2000] NSWCCA 40
Decision Date: 21 February 2000

CaseChat Overview and Summary

In the case of R v Presta, the appellant was charged with multiple counts of kidnapping and aggravated sexual assault, involving multiple victims. The incidents occurred over a prolonged period and demonstrated a pattern of sadistic behaviour. The case was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court. The central issue before the court was whether the sentence was manifestly excessive or inadequate in light of the gravity of the crimes committed by the appellant.

The court was required to determine whether the trial judge had appropriately considered the cumulative effect of the offences and the appellant's sadistic conduct. Additionally, the court needed to assess whether the sentence imposed was proportionate to the severity and nature of the crimes, taking into account the principles of sentencing in cases involving multiple victims and aggravated sexual assault. The High Court emphasised the importance of ensuring that sentences for such serious crimes reflect their heinous nature and provide adequate deterrence and protection to the community.

In delivering the judgment, the court held that the trial judge had failed to adequately consider the cumulative effect of the appellant's crimes and the impact on the victims. The court found that the sentence imposed was manifestly inadequate and did not reflect the seriousness of the offences. The High Court ordered a retrial for the purpose of sentencing, directing the trial judge to consider the appropriate sentence in light of the court's findings. The final orders of the court mandated that the appellant be re-sentenced, ensuring that the sentence imposed was proportionate to the gravity of the crimes committed.

Orders