CITATION: R v. Shillingsworth [2003] NSWCCA 272 HEARING DATE(S): 5 September 2003 JUDGMENT DATE:
26 September 2003JUDGMENT OF: Meagher JA at 1; Sully J at 2; Smart AJ at 3 DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed. CATCHWORDS: Break and enter dwelling house knowing there were persons therein and having sexual intercourse without consent - Mental element involved in break and enter - - Appellant could not believe he had permission to enter home - Evidence of complaint and distress - Inconsistencies adequately mentioned in summing-up and use of evidence of distress - Sentence of 7 years with non parole period of 4 years not excessive. LEGISLATION CITED: Crimes Act 1900 CASES CITED: Palmer v. The Queen (1998) 193 CLR 1.
R v. Fernando (1992) 76 A Crim R 58.
R v. RJC, NSWCCA, unrep. 1 Oct 1998.
Stone v R [1995] 84 A Crim R 278PARTIES :
Richard Frederick Brian Shillingsworth v Regina
FILE NUMBER(S): CCA 60197/2003 COUNSEL: Appellant: A. Francis
Respondent: D. HowardSOLICITORS: Appellant: D. J. Humphreys
Respondent: S. E. O'Connor
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/61/0138 LOWER COURT
JUDICIAL OFFICER :Finnane DCJ
60197/2003
MEAGHER JA
SULLY J
SMART AJ
26th September 2003
REGINA v RICHARD FREDERICK BRIAN SHILLINGSWORTH
JUDGMENT
1. MEAGHER JA: I agree with Smart AJ.
2. SULLY J: I agree with Smart AJ.
3. SMART AJ: Mr Shillingsworth appeals against his conviction of breaking and entering the dwelling house at 145 Meadows Road Bourke, knowing that there were persons therein, and having sexual intercourse with AO without her consent, knowing that she was not consenting. He complains of errors in the summing-up. He also seeks leave to appeal against the asserted severity of his sentence comprising a minimum term of 4 years imprisonment with an additional term of 3 years.
4. The essence of the Crown case was that about 6am on Saturday 3 March 2001 the appellant broke and entered the home of AO, her husband and their children, by opening one of its doors and entering the home, proceeding to the bedroom of AO and her husband and raping her whilst she was in bed with her husband.
5. There were inconsistencies of varying kinds in some of the background details, the details of the events alleged and details of the complaint made. In broad outline the evidence revealed the following. On the afternoon and early evening of 2 March 2001 AO was at home caring for her three children and watching television. She had not been drinking. Her husband who had been drinking with his brother, came home probably about 8.30pm, carrying 12 large bottles of beer. AO and her husband sat down, played music and talked. Her husband drank some of the beer. Late in the evening, and probably about 11.30pm a number of people arrived at the family home. They included her husband's brother Shane and his wife Lizzie, an uncle, Mark and…
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- Case
- [2003] NSWCCA 272
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's state of mind at the time of the offence, considering whether he genuinely believed he had permission to enter the dwelling or if he was simply mistaken. The court found that the appellant's belief was not genuine, as he could not genuinely believe he had permission to enter the dwelling. The court also considered the use of evidence of the victim's complaint and distress, and whether it was adequately mentioned in the summing-up. The court concluded that the inconsistencies in the evidence were adequately addressed and that the use of the evidence of distress was appropriate.
The High Court determined that the sentence imposed, being 7 years imprisonment with a non-parole period of 4 years, was not excessive in the circumstances of the case. The court took into account the severity of the crime, the appellant's criminal history, and the need for deterrence and denunciation. The court upheld the conviction and sentence, finding that the trial judge had properly considered all relevant factors in determining the appropriate sentence. No further orders were made by the court.
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