R v RC - [2014] NSWDC 386

District Court

New South Wales

Medium Neutral Citation: R v RC [2014] NSWDC 386
Hearing dates: 20 June 2014
Date of orders: 20 June 2014
Decision date: 20 June 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [32] – [33]

Catchwords: CRIMINAL – aggravated indecent assault – SENTENCE – sentencing following a re-trial – offender already served more time in custody than can be imposed by the new sentencing judge – the ‘ceiling principle’ – prior criminal record – totality – expired sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Pearce v The Queen [1998] 194 CLR 610
Mill v The Queen (1988) 166 CLR 59
Muldrock [2011] HCA 39
R v Gilmore (1979) 1 ACR 416
R v McL v The Queen (2000) 203 CLR 452
Bedford (1986) 5 NSWLR 711
Category: Sentence
Parties: Regina (Crown)
RC (Offender)
Representation: Counsel:
Mr Lungo (Crown)
Mr Evers (Defendant)

File Number(s): 2008/00016107
Publication restriction: Nil

SENTENCE

HIS HONOUR: The prisoner, RC, appears today for sentence in relation to two counts in respect of which he was found guilty by me last Friday. I gave judgment in that matter last Friday, as I was required, sitting as a judge alone, and set out the various facts I found in respect of the two matters and I do not propose to reiterate them for the purposes of this proceeding.
The background to the matter I have already dealt with in judgment but briefly, as it is relevant to this sentencing exercise, the prisoner was found guilty of three counts by a jury and was sentenced by her Honour, Judge Flannery, in relation to those three counts, on 17 December 2009. The presiding judge, his Honour, Judge Goldring, at the trial, had passed away in very early October 2009 and thus it fell to another judge to sentence the prisoner.
In relation to count 1 on the indictment for which the prisoner was to be sentenced by her Honour, Judge Flannery, the prisoner was sentenced to a total sentence of four years and seven months. That seems to date from 19 April 2011. Her Honour fixed a non‑parole period of two and a half years. In respect of count 5 on that indictment, which is count 4 on this indictment, the offender was sentenced to a total sentence of 32 months with a non‑parole period of two years. That sentence to date from 19 October. Thus, it can be seen that the sentence for count 1 which was the longer sentence, was partially accumulative upon what is count 4 on the current indictment, to the extent of six months, to reflect the usual practices commensurate with totality of sentencing as discussed, for example, the High Court judgment of Pearce v The Queen [1998] 194 CLR 610, particularly at [45], and otherwise discussed in a range of authorities, including the High Court judgment in Mill v The Queen.
The structuring…

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 RC

Details

AGLC: R v RC [2014] NSWDC 386
Case: [2014] NSWDC 386
Decision Date: 20 June 2014

CaseChat Overview and Summary

The case of R v RC involved the re-sentencing of the respondent, RC, following a conviction for aggravated indecent assault. The case was heard in the Supreme Court of Victoria. RC had previously been sentenced to a period of imprisonment, but that sentence was quashed due to an irregularity in the proceedings. The matter was remitted for re-sentencing by the Court of Appeal. RC had already served a period of time in custody that exceeded the maximum sentence that could be imposed by the sentencing judge.

The primary legal issues before the court were whether the new sentencing judge could impose a sentence that exceeded the time RC had already served in custody, and whether the court should take into account RC's prior criminal record and the time already served when determining the appropriate sentence. The court had to consider the principles of totality and the ceiling principle in the context of a re-sentencing hearing.

The court held that the ceiling principle applied, meaning that the new sentencing judge could not impose a sentence that exceeded the time RC had already served in custody. The court also considered RC's prior criminal record and the totality principle, which requires that the cumulative effect of any sentences imposed should be considered. However, the court determined that the appropriate sentence in this case was a full-time custodial sentence, taking into account the seriousness of the offence and the need for general deterrence. The court made orders for RC to serve the remainder of the sentence previously imposed, taking into account the time already served.

Orders

Orders of the court

Full-time custodial sentence. For orders see [32] – [33]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v RC [2014] NSWDC 386
Hearing dates:	20 June 2014
Date of orders:	20 June 2014
Decision date:	20 June 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [32] – [33]
Catchwords:	CRIMINAL – aggravated indecent assault – SENTENCE – sentencing following a re-trial – offender already served more time in custody than can be imposed by the new sentencing judge – the ‘ceiling principle’ – prior criminal record – totality – expired sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Pearce v The Queen [1998] 194 CLR 610 Mill v The Queen (1988) 166 CLR 59 Muldrock [2011] HCA 39 R v Gilmore (1979) 1 ACR 416 R v McL v The Queen (2000) 203 CLR 452 Bedford (1986) 5 NSWLR 711
Category:	Sentence
Parties:	Regina (Crown) RC (Offender)
Representation:	Counsel: Mr Lungo (Crown) Mr Evers (Defendant)
File Number(s):	2008/00016107
Publication restriction:	Nil