R v RE

Case [2023] NSWCCA 184 26 July 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v R E [2023] NSWCCA 184
Hearing dates: 14 July 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Before: Stern JA; Fagan J; Yehia J
Decision:
Appeal dismissed

Catchwords:
CRIME – appeals – Crown appeal against sentence – where male professional photographer found guilty of two counts of sexual intercourse without consent against young female models – one additional count of indecent assault against one of the complainants – where no error in specific findings of objective circumstances or in overall assessment of gravity – where strong subjective case – where respondent under treatment for cancer at time of remand for sentence and follow-up medical attention not provided in custody – sentence not manifestly inadequate

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Brierley v R [2022] NSWCCA 26
R v Ibrahim [2021] NSWCCA 296
Saffin v R [2020] NSWCCA 246
Tepania v R [2018] NSWCCA 247

Category: Principal judgment
Parties: Rex (Applicant)
R E (Respondent)
Representation:
Counsel:
M Millward (Applicant)
E McLaughlin (Respondent)
Solicitors:
Solicitor Director of Public Prosecutions (NSW) (Applicant)
Mandy Hull & Associates (Respondent)

File Number(s): 2018/294383
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 March 2023

Before:

Judge Wass SC

File Number(s):

2018/294383

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Director of Public Prosecutions appealed against a sentence imposed, after trial, for two counts (1 & 4) of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), committed against two separate complainants six years apart, and one count (3) of indecent assault, contrary to s 61L. The respondent was a professional photographer. At the time of count 1 he was 46 years and the complainant, TM, was 17. A dildo was used as a prop during an erotic photo shoot. Without TM’s consent the respondent inserted the dildo in her vagina and manipulated it for approximately 10 minutes. The indecent assault in count 3 was also committed against TM but on a separate occasion, when she was the passenger in the respondent’s car to be driven home from a photo shoot. The respondent put one hand over her genitals on the outside of her shorts for a few seconds. When challenged by the complainant he stopped and apologised. The offence in count 4 occurred approximately six years later against JD, aged 26 years. She was modelling in his studio for “nude implied art”. The respondent briefly inserted his finger in her vagina without her consent. For the two sexual intercourse offences an aggregate sentence of 2 years and 8 months with a non-parole period of 1 year and 1 month was imposed and for the indecent assault a community corrections order of 3 years.

The grounds of appeal were (1) error in the assessment of objective seriousness of the sexual intercourse offences in counts 1 and 4; (2)…

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 RE

Details

AGLC: R v RE [2023] NSWCCA 184
Case: [2023] NSWCCA 184
Decision Date: 26 July 2023

CaseChat Overview and Summary

The appeal in R v RE involves the respondent, a professional photographer, who was found guilty of two counts of sexual intercourse without consent and one count of indecent assault against young female models. The Crown appealed against the sentence, arguing it was manifestly inadequate. The case was heard by the court of appeal. The primary legal issue was whether the sentence imposed was manifestly inadequate, given the severity of the crimes and the respondent's ongoing medical needs. The court needed to determine whether the trial judge made any errors in assessing the circumstances or the gravity of the crimes.

The court examined the specific findings of the objective circumstances and the overall assessment of the gravity of the crimes. It found no error in the trial judge's assessment of these aspects. The court also considered the strong subjective case made by the prosecution, which supported the severity of the crimes. Furthermore, the court noted the respondent's medical condition, specifically that he was under treatment for cancer at the time of sentencing, and that his follow-up medical attention was not provided in custody. Despite these factors, the court concluded that the sentence was not manifestly inadequate. The court's reasoning was based on the severity of the crimes and the overall assessment of the circumstances, which aligned with the principles of sentencing in such serious cases.

The court of appeal dismissed the Crown's appeal against sentence, affirming the original sentence imposed by the trial judge. The court held that, given the objective circumstances and the gravity of the crimes, the sentence was appropriate and not manifestly inadequate. The court did not find any errors in the trial judge's assessment and maintained that the sentence reflected the seriousness of the offences committed by the respondent.

Orders