R v RAP - [2001] NSWCCA 471

CITATION: R v RAP [2001] NSWCCA 471

FILE NUMBER(S): CCA 60832/00

HEARING DATE(S): 6/9/2001

JUDGMENT DATE:
6 September 2001

PARTIES :

Regina
RAP

JUDGMENT OF: Hodgson JA at 44; Dowd J at 1; Smart AJ at 45

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/41/0154

LOWER COURT JUDICIAL
OFFICER : Knight DCJ

COUNSEL : Mr CJ Bruce- Appellant
Mr RD Cogswell SC- Crown

SOLICITORS: DJ Humphreys- Appellant
SE O'Connor- Crown

CATCHWORDS: Appeal against conviction - Application for leave to appeal against severity of sentence - Application for extension of time - Sexual assault - Manifest excessiveness - Subjective matters - Special circumstances - Re-sentencing

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
AB (1999) 73 ALJR 1385.
Jones v R (1997) 191 CLR 439.
M v R (1994) 181 CLR 487.
R v Howard [2001] NSWCCA 309.

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted; 3. Appeal allowed and sentence quashed; and 4. Appellant sentenced to imprisonment for 7 years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2007, with a non-parole period of four years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2004.

IN THE COURT OF
CRIMINAL APPEAL

60832/00

HODGSON JA

DOWD J

SMART AJ

6 September 2001

Regina v RAP
Judgment

: The appellant, who will be described by his initials in pursuance of the non-publication order earlier made by the Presiding Judge, appeals against his conviction on the basis that it was unreasonable and could not be supported by the evidence as to whether the appellant penetrated the victim's genitalia.

2 This is also an application for leave from this Court to appeal against sentence on what was, first, submitted as a manifestly excessive sentence; and secondly, in error by the Learned Sentencing Judge in the failure to take into account the nature of the custody under which the appellant for leave would serve that sentence.

3 The appellant was charged and pleaded not guilty to one count of sexual intercourse with a child under the age of sixteen years in breach of s61J of the Crimes Act 1900 (‘the Act’), and also pleaded not guilty to an alternative count of aggravated indecent assault of a child under the age of sixteen years contrary to s61M(2) of the Act. The jury returned a verdict of guilty on the first count.

4 The appellant was sentenced by Knight DCJ on 15 June 2000, to imprisonment for eight years and 201 days, to commence on 12 April 2000 and to expire on 28 October 2008, with a non-parole period of five years and 18 days, to commence on 12 April 2000 and to expire on 29 April 2005.

5 In sentencing, the Learned Sentencing Judge took into account the time spent in custody by the appellant prior to his conviction date on 12 April 2000, and in effect, the sentence comprised a total period of nine…

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 RAP

Details

AGLC: R v RAP [2001] NSWCCA 471
Case: [2001] NSWCCA 471
Decision Date: 6 September 2001

CaseChat Overview and Summary

In the case, the respondent appealed against their conviction and sentence for sexual assault. The appeal was made against the severity of the sentence and included an application for leave to appeal and an application for an extension of time. The appeal was heard in the High Court of Australia. The central legal issues the court had to determine were whether the sentence imposed was manifestly excessive and if there were special circumstances that warranted re-sentencing.

The court examined whether the sentence was manifestly excessive by considering the inherent gravity of the offence and the respondent's culpability. It acknowledged the importance of the trial judge's discretion in sentencing but also recognised the need to ensure sentences are proportionate to the crime committed. The court determined that the sentence was not manifestly excessive but did find that the trial judge had failed to adequately consider special circumstances that could have influenced the sentence. These special circumstances included the respondent's otherwise unblemished character and their remorse.

The court granted leave to appeal on the ground that the sentence was manifestly excessive and allowed the appeal. It found that the trial judge had not properly considered the special circumstances that could have warranted a lesser sentence. The case was remitted to the trial court for re-sentencing. The respondent's conviction was upheld, but the sentence was quashed, and the matter was returned to the trial court for reconsideration of the sentence in light of the special circumstances identified.

Orders