R v Shortland

Case [2018] NSWCCA 34


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Shortland [2018] NSWCCA 34
Hearing dates: 1 February 2018
Decision date: 09 March 2018
Before: 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
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A, 44, 54A, 54B, 54C; Pt 4, Div 1A
Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 61J
Crimes Act 1914 (Cth), s 16A
Criminal Appeal Act 1912 (NSW), ss 5D, 21A
Criminal Procedure Act 1986 (NSW), s 306I
Migration Act 1958 (Cth), ss 501, 501CA
Cases Cited: Bravo v R [2015] NSWCCA 302
Butler v R [2012] NSWCCA 23
Cahyadi R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cheung v The Queen (2001) 209 CLR 1, [2001] HCA 67
Church v R [2012] NSWCCA 149
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Cowling v R [2015] NSWCCA 213
Day v R [2017] NSWCCA 192
Dinsdale v The Queen (2000) 202 CLR 321, [2000] HCA 54
Dipangkear v R [2010] NSWCCA 156
Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
Elmir v R [2009] NSWCCA 22
Elshani v R [2015] NSWCCA 254
Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
Faehringer v R [2017] NSWCCA 248
Flick v R [2012] NSWCCA 170
FP v R [2012] NSWCCA 182
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greenwood v R [2014] NSWCCA 64
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Hopley v R [2008] NSWCCA 105
House v The King (1936) 55 CLR 499
Ihemeje v R [2012] NSWCCA 269
King v R [2010] NSWCCA 202
McCartney v…

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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.

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Background

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Decision

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