R v Shillingsworth - [2003] NSWCCA 272

CITATION: R v. Shillingsworth [2003] NSWCCA 272

HEARING DATE(S): 5 September 2003

JUDGMENT DATE:
26 September 2003

JUDGMENT 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 278

PARTIES :
Richard Frederick Brian Shillingsworth v Regina

FILE NUMBER(S): CCA 60197/2003

COUNSEL: Appellant: A. Francis
Respondent: D. Howard

SOLICITORS: 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…

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

Case: [2003] NSWCCA 272
Decision Date: 26 September 2003

CaseChat Overview and Summary

In the case of R v Shillingsworth, the appellant was convicted of breaking and entering a dwelling house with intent to commit an indictable offence while knowing that there were persons present, and subsequently engaging in sexual intercourse without consent. The matter was heard and determined in the High Court of Australia. The central issue before the court was the mental element required for the crime of breaking and enter, specifically whether the appellant could genuinely believe he had permission to enter the dwelling, and the appropriate weight to be given to evidence of the victim's complaint and distress.

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.

Orders