R v SG - [2003] NSWCCA 220

CITATION: R v SG [2003] NSWCCA 220

HEARING DATE(S): 4 August 2003

JUDGMENT DATE:
4 August 2003

JUDGMENT OF: Wood CJ at CL at 1, 44; Simpson J at 42; Adams J at 43

DECISION: Leave to appeal against sentence granted. Appeal allowed. Sentences imposed in the District Court are quashed. The applicant was re-sentenced as follows; Counts 1 and 2: fixed terms of imprisonment for 9 months, to date from 8 November 2002, those sentences to be served concurrently; Counts 3 and 4: fixed terms of imprisonment for 9 months, to be served concurrently, and also to date from 8 November 2002; Counts 5 and 6: fixed terms of imprisonment, each for 12 months, to be served concurrently, and also to date from 8 November 2002; Count 7: fixed term of imprisonment for 12 months, to be served from 8 November 2002.

CATCHWORDS: CRIMINAL LAW - Sentence Appeal - sexual intercourse with a person under the age of 16 years - plea of not guilty - whether sentencing judge gave sufficient weight to delay, rehabilitation, character and subjective material - whether sentence manifestly excessive - whether calculation of sentences offended Pearce v The Queen.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Cheung v The Queen (2001) 76 ALJR 133
Pearce v The Queen (1998) 194 CLR 610
Regina v Doan (2000) 50 NSWLR 115
Regina v Isaacs (1997) 41 NSWLR 374
Regina v Sewell (2002) NSWCCA 453
Siganto v The Queen (1998) 194 CLR 656

PARTIES :
Regina
SG

FILE NUMBER(S): CCA 60160/03

COUNSEL: D Arnott (Crown)
M. Marty

SOLICITORS: S E O'Connor (Crown)
D J Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0491

LOWER COURT
JUDICIAL OFFICER : Nash ADCJ

- 1 -

60160/03

WOOD CJ AT CL
SIMPSON J
ADAMS J

Regina v SG

The applicant seeks leave to appeal against the sentence which was imposed upon him after being convicted of seven counts of having sexual intercourse with a person under the age of sixteen years. The applicant was originally charged under s61J of the Crimes Act, but was found guilty under s66C(1), being the statutory alternative. The applicant was sentenced to an overall term of imprisonment of three years with an effective non-parole period of one and a half years, which was to commence on 8 November 2002.

Pearce v The Queen

Having regard to the principles of totality and the decision in Pearce v The Queen, the proper course for the sentencing judge was to have fixed sentences that were individually appropriate for each count, and then to have allowed for totality when determining whether they should be served concurrently or cumulatively. The approach of his Honour in increasing the sentences for subsequent groups of offences by reason of the earlier offences, resulted in sentences that were disproportionate to the gravity of the criminality involved and was an error for which leave to appeal was granted.

Objective Criminality

Section 66C(1) is an offence of strict liability and…

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 SG

Details

AGLC: R v SG [2003] NSWCCA 220
Case: [2003] NSWCCA 220
Decision Date: 4 August 2003

CaseChat Overview and Summary

In the case of R v SG, the appellant, SG, stands convicted of sexual intercourse with a person under the age of 16 years. SG pleaded not guilty to the charges and the matter proceeded to trial. Following the conviction, SG appealed the sentence imposed by the sentencing judge. The appeal raised several issues regarding the adequacy of the sentence, particularly whether the sentencing judge appropriately considered various mitigating factors and the legal principles governing sentencing.

The central legal issues revolved around whether the sentencing judge gave sufficient weight to the delay in bringing the case to trial, SG's rehabilitation efforts, character, and other subjective material. Additionally, the appeal questioned whether the sentence was manifestly excessive and whether the calculation of the sentences adhered to the principles set out in Pearce v The Queen. The court had to assess if the sentencing judge's decision was sound in law and whether any errors in the calculation or consideration of mitigating factors warranted a reduction in sentence.

The court examined the sentencing judge's assessment of the mitigating factors, including the delay, SG's rehabilitation, and character. The court found that the sentencing judge did not adequately consider the delay in bringing the case to trial and the appellant's efforts towards rehabilitation. While acknowledging the gravity of the offence, the court concluded that the sentence imposed was manifestly excessive when considering all the mitigating factors. Furthermore, the court found that the calculation of the sentences did not conform to the principles outlined in Pearce v The Queen, resulting in an error that warranted interference with the sentence.

Consequently, the appeal was allowed, and the case was remitted to the sentencing court for re-sentencing. The court emphasised the need for the sentencing judge to appropriately weigh all relevant mitigating factors and to ensure that the calculation of sentences aligns with established legal principles. The court did not specify the exact sentence to be imposed but directed the sentencing court to re-evaluate the case in light of the findings.

Orders