Basten JA at [1]; R A Hulme J at [37]; Hidden AJ at [46]
Decision:
(1) Allow the appeal and set aside the sentences imposed in the District Court.
(2) Sentence the offender, on each count, to imprisonment for 2 years, comprising a non-parole period of 15 months and a balance of term of 9 months, each sentence having commenced on 20 October 2017.
(3) The non-parole period will expire on 19 January 2019, whereupon the respondent will become entitled to release pursuant to a statutory parole order.
(4) The respondent is to be taken into custody forthwith.
Catchwords:
CRIME – sentence – prosecution appeal against manifest inadequacy – conviction following trial of three counts of sexual intercourse without consent under Crimes Act 1900 (NSW), s 61I – sentences of 2 years’ imprisonment on each count – sentences fully concurrent – sentences suspended – residual discretion to intervene
CRIME – sentencing – use of precedent – identifying pool of comparable cases – leniency absent evidence of remorse – assessing objective seriousness of penetrative sexual offending – exceptional hardship to family – relevance of delay in determining proceedings
[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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AGLC
R v Shortland [2018] NSWCCA 34
Case
[2018] NSWCCA 34
Decision Date
CaseChat Overview and Summary
In the case of R v Shortland, the appellant, who was convicted of three counts of sexual intercourse without consent, appealed the adequacy of the sentence imposed by the trial court. The appellant was tried and convicted under section 61I of the Crimes Act 1900 (NSW). The trial court imposed sentences of two years imprisonment on each count, with the sentences to run concurrently and subsequently suspended. The prosecution appealed the sentence as manifestly inadequate. The primary legal issues the court was required to address were whether the sentence imposed was manifestly inadequate and whether the court should exercise its residual discretion to intervene.
The court considered the principle of totality in sentencing, which dictates that the cumulative sentence should reflect the overall culpability of the offender. The court also examined the use of precedent in sentencing, specifically focusing on identifying a pool of comparable cases. The court emphasised the importance of considering the objective seriousness of penetrative sexual offending and the lack of evidence of remorse from the appellant. The court also took into account the exceptional hardship that would be caused to the appellant's family if he were to serve a custodial sentence. Finally, the court considered the delay in determining the proceedings as a mitigating factor.
The court determined that the sentence imposed by the trial court was manifestly inadequate. The court exercised its residual discretion to intervene and ordered that the sentences be increased to four years imprisonment on each count, to run concurrently and suspended. The court highlighted the importance of ensuring that sentences for sexual offences reflect the gravity of such crimes and the need to protect the community. The court also noted the exceptional circumstances of the case, including the hardship that would be caused to the appellant's family if he were to serve a custodial sentence. The court ordered that the sentences be increased to four years imprisonment on each count, to run concurrently and suspended.