Criminal Law - sentencing - assertion of disparity - co-offenders sentenced by different judges - disparate findings of fact - whether justifiable sense of grievance; Criminal Law - sentencing of co-offenders - desirability that one judge sentence all.
ACTS CITED:
s 61J Crimes Act
CASES CITED:
R v Cartwright (1989) 17 NSWLR 243 R v Bus, Court of Criminal 3.11.95, unrep R v Lewis, Court of Criminal Appeal 14.12.93 unrep
DECISION:
Leave to appeal granted; Appeal dismissed
IN THE COURT OF CRIMINAL APPEAL
60081/98
BARR J McINERNEY AJ
Monday, 24 May 1999
REGINA v Andrew Troy RUSHBY
JUDGMENT
1 BARR J: The applicant seeks leave to appeal against sentences imposed by his Honour Judge Christie of Queen’s Counsel in the District Court. For the offence of having sexual intercourse without consent and in circumstances of aggravation, his Honour sentenced the applicant to penal servitude for eight years comprising a minimum term of five years and an additional term of three years. In imposing sentence, his Honour took into account under the provisions of the Criminal Procedure Act the offences of taking and driving a conveyance and driving whilst unlicensed.
2 The applicant, who was then aged eighteen years and ten months, and his co-offender Stephen Spence, then aged sixteen years and three months, met a thirteen year old girl at Liverpool. The three decided to steal a car. They did so and used it to spend some hours in the Liverpool area carrying out various activities. They then drove north along the Singleton Road but at a remote place many kilometres north of Colo, the vehicle broke down and they abandoned it in the early hours of the morning. They lit a fire and waited. When it was daylight they began to walk towards Windsor, intending to hitchhike. The applicant and the co-offender discussed raping the girl. She realised what was happening and began to walk faster trying to get away from them. They caught her up and the co-offender pushed her down at the side of the road and dragged her into rough bushland. The applicant assisted and the two dragged her between 100 and 150 metres to a secluded spot well away from the road.
3 The complainant was distressed, yelling and screaming. The co-offender ordered her to remove her clothes and threatened to strike her with a piece of wood if she did not do so. He had penile vaginal sexual intercourse with her and ejaculated. The applicant watched. The applicant then forced the complainant on to her hands and knees and had anal intercourse…
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.
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Details
AGLC
R v Rushby [1999] NSWCCA 104
Case
[1999] NSWCCA 104
Decision Date
CaseChat Overview and Summary
The case of R v Rushby involved the defendant, Rushby, who was sentenced for his criminal activities. The matter was brought before the court to address the issue of sentencing disparity among co-offenders who had been sentenced by different judges. Rushby sought to challenge the fairness of his sentence, arguing that it was unjust compared to the sentences of his co-offenders, who had been sentenced by a different judge and had received more lenient penalties. The court was tasked with determining whether the disparity in sentencing was justifiable and if there existed a sense of grievance on the part of Rushby that warranted a review of his sentence.
The primary legal issues that the court had to address were the principles underpinning sentencing and the circumstances under which disparities in sentencing between co-offenders might be considered unjust. The court considered whether the differences in the findings of fact between the judges could justify the disparity in the sentences. It also examined the argument that Rushby had a justifiable sense of grievance due to the perceived inequality in sentencing. Additionally, the desirability of having a single judge sentence all co-offenders to ensure consistency was explored.
The court concluded that while sentencing disparities could arise due to differing factual findings, the overarching principle was to ensure that justice was served in each individual case. The court recognised that the principle of equality in sentencing was important but noted that it was not an absolute requirement for all co-offenders to be sentenced by the same judge. The court found that the disparity in sentencing was not unjust, given the differing circumstances and factual findings of the cases. Consequently, Rushby's appeal was dismissed, and the original sentence was upheld.
No specific final orders were made beyond the dismissal of Rushby's appeal and the upholding of the original sentence. The court's decision underscored the importance of judicial discretion in sentencing and the necessity for each case to be considered on its unique merits.