R v Rapley - [1999] NSWCCA 302

CITATION: REGINA v RAPLEY [1999] NSWCCA 302

FILE NUMBER(S): CCA 60147/99

HEARING DATE(S): 14 September 1999

JUDGMENT DATE:
14 September 1999

PARTIES :

REGINA
v
GEORGE CHARLES RAPLEY

JUDGMENT OF: Handley JA at 1; Grove J at 24, 28; Hidden J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0192

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL: M M Cunneen (Appellant)

SOLICITORS: S E O'Connor (Appellant)
Greg Walsh (Respondent)

CATCHWORDS: CRIMINAL LAW - sexual abuse of granddaughter - Crimes Act 1900 - s 66A - sexual intercourse with a person under the age of 10 - s 61M(2) - aggravated indecent assault against a person under the age of 10; SENTENCING - Criminal Appeal Act 1912 - Crown appeal under s 5D - whether sentence imposed by trial Judge manifestly inadequate - whether factors such as age of prisoner, contrition of prisoner, or wishes of victim's family warrant non-custodial sentence

ACTS CITED: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)

CASES CITED:
Allpass (1993) 72 ACrimR 561
King (CCA unrep 2/4/97)
DCM v R (CCA unrep 26/10/93)

DECISION: Appeal allowed - orders made

IN THE COURT OF
CRIMINAL APPEAL

CCA 60147/99
98/11/0192

HANDLEY JA
GROVE J
HIDDEN J

Tuesday 14 September 1999

REGINA v GEORGE CHARLES RAPLEY

CRIMINAL LAW - sexual abuse of granddaughter - Crimes Act 1900 - s 66A - sexual intercourse with a person under the age of 10 - s 61M(2) - aggravated indecent assault against a person under the age of 10

SENTENCING - Criminal Appeal Act 1912 - Crown appeal under s 5D - whether sentence imposed by trial Judge manifestly inadequate - whether factors such as age of prisoner, contrition of prisoner, or wishes of victim’s family warrant non-custodial sentence

The respondent pleaded guilty to five charges involving the sexual abuse of his eight year old granddaughter. Sentence was deferred, and the trial Judge ordered the respondent’s release on recognizance. The trial Judge’s reasons for this decision included the age of the respondent, the absence of a criminal record, the spontaneous nature of the offences, the contrition of the respondent, and the wishes of the victim’s immediate family that the respondent not go to prison. The Crown appealed, on the basis that the sentence was manifestly inadequate and failed to take into account the objective criminality of these offences.
HELD , allowing the appeal: (1) The exercise of the trial Judge’s sentencing discretion had miscarried. The nature of the respondent’s offences were such that they should attract a full-time custodial sentence. Allpass (1993) 72 ACrimR 561 and King (CCA unrep 2 April 1997), followed. (2) The matters which the trial Judge took into account, such as the age of the respondent, the contrition of the respondent, and the wishes of the victim’s family, inter alia, were individually and collectively of little weight in supporting a non-custodial sentence.

ORDERS
(1) Appeal allowed;

(2) The orders made in the District Court are quashed, and in lieu thereof the respondent is…

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 Rapley

Details

AGLC: R v Rapley [1999] NSWCCA 302
Case: [1999] NSWCCA 302
Decision Date: 14 September 1999

CaseChat Overview and Summary

The case of R v Rapley involved the defendant, Rapley, who was convicted of sexually abusing his granddaughter, a child under the age of ten. The matter was heard in the Court of Criminal Appeal, where the Crown sought an appeal against the sentence imposed by the trial judge. The central issues before the Court were whether the sentence was manifestly inadequate and whether non-custodial sentencing should be considered based on the defendant's age, his contrition, or the wishes of the victim's family. The Court needed to determine whether the trial judge had erred in failing to consider these factors adequately.

In examining the sentencing considerations, the Court noted that the trial judge had imposed a non-custodial sentence on the defendant, citing his age and the family's wishes as mitigating factors. The Crown argued that the trial judge had failed to sufficiently consider the gravity of the offence and the need for general deterrence. The Court considered the statutory framework and the principles of sentencing, particularly those relating to sexual offences against children. The Court had to weigh the mitigating factors against the need for punishment and deterrence in light of the serious nature of the crime.

The Court held that the trial judge had erred in not adequately considering the severity of the offence and the necessity for general deterrence. While recognising the mitigating factors, the Court found that the sentence imposed was manifestly inadequate. The Court emphasised that the seriousness of sexual offences against children necessitates robust sentencing that adequately reflects the gravity of such crimes. The Court allowed the Crown's appeal and ordered a re-sentencing by another judge, directing that the sentence imposed should appropriately balance the mitigating factors with the need for punishment and deterrence.

The Court's final orders included a direction that the re-sentencing should be conducted by a different judge, ensuring that all relevant factors, including the severity of the offence and the need for deterrence, were properly considered. The Court also emphasised the importance of adequately addressing the impact of the crime on the victim and the community. The defendant's sentence was to be reviewed to ensure it reflected the appropriate balance between punishment, deterrence, and any mitigating factors.

Orders