Price J at [1]; Ierace J at [2]; McNaughton J at [3]
Decision:
(1) Grant leave to file the amended grounds of appeal;
(2) Allow the appeal;
(3) Quash the sentence imposed on the respondent in the District Court on 1 September 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months commencing on 7 December 2018. The date the respondent is first eligible for release to parole is 6 September 2024.
Catchwords:
CRIME – appeals – Crown appeal – whether sentencing judge erred in assessment of objective seriousness, or alternatively, mistaking the facts – whether sentence manifestly inadequate – sexual offences against estranged wife with related assault offences on schedule – two-year-old child present for some offending – no criminal history – need for clear general deterrence and denunciation – appeal allowed – sentence below quashed – sentence increased
[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 Ss (a pseudonym) [2022] NSWCCA 258
Case
[2022] NSWCCA 258
Decision Date
CaseChat Overview and Summary
In the case of R v Ss, the appellant, Ss, was convicted of multiple sexual offences against his estranged wife and related assault offences. The offences occurred in the presence of their two-year-old child. The appellant had no prior criminal history. The Crown appealed the sentence imposed by the primary judge, arguing it was manifestly inadequate. The court was required to determine whether the sentencing judge erred in assessing the objective seriousness of the offences or mistakenly interpreted the facts, and whether the sentence imposed was manifestly inadequate.
The court examined the primary judge's approach to sentencing, focusing on the objective seriousness of the offences and the need for general deterrence and denunciation. The court held that the primary judge had erred in assessing the objective seriousness of the offences, particularly by not adequately considering the impact of the presence of the child during the commission of the crimes. The court also found that the sentence imposed was manifestly inadequate, failing to adequately reflect the gravity of the offences and the need for general deterrence. The appeal was allowed, and the sentence below was quashed, with a new sentence to be determined.
The court acknowledged the appellant's lack of criminal history but emphasised the importance of clear general deterrence and denunciation in cases involving sexual offences against an estranged spouse in the presence of a child. The court's decision highlights the need for sentencing judges to carefully consider the objective seriousness of the offences and the need for general deterrence when imposing sentences in such cases. The final orders of the court were to allow the appeal, quash the sentence below, and increase the sentence to an appropriate level reflecting the gravity of the offences.