R v Reyes

Case [2005] NSWCCA 218

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Reyes [2005]  NSWCCA 218

FILE NUMBER(S):
2005/217

HEARING DATE(S):               12 April 2005

JUDGMENT DATE: 16/06/2005

PARTIES:
Regina v Mark Anthony Reyes

JUDGMENT OF:       Wood CJ at CL Grove J Hoeben J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/3303

LOWER COURT JUDICIAL OFFICER:     Maguire DCJ

COUNSEL:
P. Barrett (Crown/Applicant)
A. Haesler SC (Respondent)

SOLICITORS:
S. Kavanagh (DPP)
S.E. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MULTIPLE SEXUAL AND ASSOCIATED OFFENCES ON TWO VICTIMS
HIGH LEVEL OF CRIMINALITY DISCLOSED
FAILURE TO ADVERT TO PRESCRIBED STANDARD NON PAROLE PERIOD
REFUSAL OF OFFENDER TO ACKNOWLEDGE GUILT WITH POSSIBLE EFFECT ON GRANT OF PAROLE NOT A BASIS FOR MITIGATION OF ASSESSED SENTENCE
CROWN APPEAL
INADEQUACY OF SENTENCES DEMONSTRATED
RESPONDENT RESENTENCED

LEGISLATION CITED:
Crimes Act 1900
s5D Criminal Appeal Act 1912
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999

DECISION:
Crown appeal allowed.
Respondent resentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/217

WOOD CJ at CL
GROVE J
HOEBEN J

Thursday 16 June 2005

REGINA   v   MARK ANTHONY REYES

Judgment

  1. WOOD CJ at CL:   I have read in draft form the judgment of Grove J.  I agree with the orders proposed, and with the reasons of his Honour.

  2. GROVE J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act seeking the increase in sentences imposed at Campbelltown District Court by Maguire DCJ following trial of the respondent before his Honour and a jury.  The relevant indictment contained thirty one counts, to two of which the respondent pleaded guilty and on the remaining counts which were the subject of trial he was convicted on twenty counts; verdicts of not guilty were found by the jury on two counts; verdicts of not guilty found by direction of the presiding judge on a further five counts, and no verdict was taken on the remaining two counts upon which the jury were unable to agree.

  3. The overall effect of the sentences imposed was a total term of 13 years imprisonment with 10 years to be served before the respondent will be eligible for consideration for parole.

  4. There were convictions on seven different species of offence and there were two victims involved.  In categories the offences were, using short descriptions, kidnapping contrary to Crimes Act 1900 s 86(1)(b) (one count numbered 1, prescribed maximum penalty 14 years imprisonment); indecent assault contrary to s 61L (three counts numbered 2, 4 and 28, prescribed maximum penalty 5 years imprisonment); administering a stupefying drug contrary to s 38 (four counts numbered 3, 10, 17 and 18, prescribed maximum penalty 25 years imprisonment); aggravated sexual assault contrary to s 61J(1)(b) (ten counts numbered 6, 13, 14, 15, 16, 19, 20, 23, 29 and 30, prescribed maximum penalty 20 years imprisonment); obtain benefit by deception contrary to s 178BA (two counts numbered 11 and 24, prescribed maximum penalty 5 years imprisonment); steal from person contrary to s 94 (one count numbered…

Continue reading R v Reyes

Sign in free to access the full text

Details
AGLC
R v Reyes [2005] NSWCCA 218
Case
[2005] NSWCCA 218
Decision Date

CaseChat Overview and Summary

The case of R v Reyes involved the respondent, who was appealing against his sentence for multiple sexual and associated offences committed against two victims. The Crown had successfully appealed against the adequacy of the sentences imposed at first instance, arguing they were manifestly inadequate. The primary legal issue before the court was whether the sentences, particularly in terms of their overall effective term and non-parole period, were indeed inadequate. The court was also required to consider whether the respondent's refusal to acknowledge guilt should be considered as a mitigating factor in the resentencing process. Furthermore, the court needed to determine whether the principles of restraint in resentence after a successful Crown appeal should be applied and if so, to what extent.

The court carefully examined the nature of the crimes and the high level of criminality involved. It was noted that the respondent's refusal to acknowledge guilt could not be taken into account as a mitigating factor, as the core of the sentencing jurisdiction is the guilt of the offender. The court rejected the submission that the risk of the respondent not participating in treatment programs due to his refusal to acknowledge guilt should reduce the sentence. The court also highlighted that allowing such a factor would be inconsistent with the sentencing process and could potentially lead to manipulation by offenders. The court concluded that the sentences imposed were manifestly inadequate and that the resentencing should reflect the principles of restraint, meaning that the new sentences would generally be less than what should have been imposed initially. The respondent was thus resentenced, taking into account the need for restraint and the severity of the offences committed.

In its judgment, the court found that the Crown's submission regarding the inadequacy of the sentences was valid. The overall effective term and non-parole period of thirteen years with a ten-year non-parole period were deemed insufficient. The court implemented its residual discretion to resentence the respondent, ensuring that the new sentences reflected the principles of restraint appropriate in such cases. The court dismissed the respondent's alternative submissions, including the notion that the sentences should be considered adequate due to "double jeopardy" and the principles of restraint in resentence. The final order was for the respondent to be resentenced, taking into account the severity of the crimes and the need for an adequate punitive and deterrent sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WOOD CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ

The respondent seeks to rely upon information presented to the Court in the affidavit of Mr Hutchison, the solicitor in charge of the Prisoners Legal Service of the Legal Aid Commission of New South Wales. In summary, Mr Hutchison testifies that the Parole Board exercising its function with regard in particular to s 135 of the Crimes (Administration of Sentences) Act 1999 takes the view that it is not in the public interest to grant parole to an untreated sex offender and that the risk of reoffending is high. Alternatively the Parole Board may grant parole only towards the end of sentence (six months is suggested) so that there is only a brief period of parole supervision and monitoring before the sentence expires. He claimed that this means in practical terms that an offender must undergo therapy programmes of various sorts which are available under the umbrella title CUBIT (Custody Based Intensive Treatment). An offender who wishes to participate in such programmes, but denies offences, is not accepted into the programmes. The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt. Counsel referred to no authority for the proposition that this particular risk of service of full sentence could be a factor in assessment. The absence of authority is not surprising. It requires little imagination to postulate a situation that, if a persistent claim of innocence after conviction were maintained and this attracted a reduction in sentence, an offender could adopt that position but, after receiving the discounted sentence, alter his stance, undertake a CUBIT programme and earn release from the shortened sentence. Once sentence is passed (absent express legislation such as applies to persons who renege on offers to assist law enforcement authority) there is no facility for cancelling a discount received by a manipulative offender. The ultimate submission of the respondent was that, accepting that error can be identified in the process of formulating the sentences, those favouring the respondent and those contrary to his interests “cancelled each other out” and the final effective sentence of thirteen years total term with a ten year non parole period was not so inadequate as to justify intervention. Alternatively, the respondent sought implementation of the residual discretion of this Court to dismiss a Crown appeal, particularly on the basis that if regard be paid to “double jeopardy” and the principles of restraint in resentence after a successful Crown appeal, a greater sentence would not be warranted. In my opinion the Crown submission that the sentence, in the sense of its overall effective term and non parole period, was manifestly inadequate is made out. The most convenient way to deal with that outcome is to undertake the task of resentence. In assessing the various terms for this purpose there must be implemented the restraint appropriate when increased sentence is imposed following successful Crown appeal: R v Allpass 1993 72 A Crim R 561 with the result that they will generally be less than what ought to have been imposed at first instance: R v Holder and Johnston 1983 3 NSWLR 245; Dinsdale v The Queen 2000 202 CLR 321 (per Kirby J). RESENTENCE