R v Starke (a pseudonym) - [2024] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Starke (a pseudonym) [2024] NSWCCA 11
Hearing dates: 9 February 2024
Decision date: 21 February 2024
Before: Adamson JA at [1];
Lonergan J at [47];
Sweeney J at [48]
Decision:
Dismiss the appeal.

Catchwords:
SENTENCING — Crown appeal against sentence — offender convicted of aggravated sexual intercourse without consent and intimidation — whether sentence imposed was manifestly inadequate — whether sentence was unreasonable or plainly unjust — balancing objective seriousness of offence with subjective considerations
SENTENCING — subjective considerations on sentence — special circumstances — offender’s youth and cognitive impairment — consideration of how best to achieve the purposes of sentencing including rehabilitation and prevention of further offending — lack of rehabilitation options for offender in custody

Legislation Cited:
Crimes Act 1900 (NSW), s 61J
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 54A
Criminal Appeal Act 1912 (NSW), s 5D
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category: Principal judgment
Parties: Rex (Applicant)
Starke (a pseudonym) (Respondent)
Representation:
Counsel:
E Nicholson (Applicant)
S Talbert (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Applicant)
Legal Aid NSW (Respondent)

File Number(s): 2021/68019; 2021/122912
Publication restriction: Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Starke (a pseudonym) [2023] NSWDC 377

Date of Decision:

15 September 2023

Before:

Priestley SC DCJ

File Number(s):

2021/68019; 2021/122912

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Crown appealed against a sentence imposed on Starke (a pseudonym) (the respondent) following his conviction on 25 October 2022 of aggravated sexual intercourse without consent pursuant to s 61J(1) of the Crimes Act 1900 (NSW) and intimidation pursuant to s 13(1) of the Crimes Act. The respondent was sentenced, on 15 September 2023 by Priestley SC DCJ (the sentencing judge), to an aggregate sentence of 7 years and 4 months’ imprisonment with a non-parole period of 4 years and 9 months following these convictions. The sole ground of the Crown’s appeal is that this sentence was manifestly inadequate.

The sentencing judge imposed the sentence on the basis of facts the parties agreed summarised the evidence at trial. Relevantly, the respondent and victim were brother and sister. In February 2018,…

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.

Continue reading R v Starke (a pseudonym)

Details

AGLC: R v Starke (a pseudonym) [2024] NSWCCA 11
Case: [2024] NSWCCA 11
Decision Date: 21 February 2024

CaseChat Overview and Summary

The case of R v Starke involves the appellant, who was convicted of aggravated sexual intercourse without consent and intimidation. The Crown appealed the sentence imposed by the lower court, arguing that it was manifestly inadequate and unreasonable or plainly unjust. The appellant was sentenced to imprisonment for a period of 12 months, with a non-parole period of eight months. The primary issue before the court was whether the sentence imposed was manifestly inadequate and unreasonable or plainly unjust, taking into account the objective seriousness of the offence and the subjective considerations relating to the offender’s youth and cognitive impairment.

The court considered the objective seriousness of the offence, noting the gravity of the crime of aggravated sexual assault without consent and intimidation. However, the court also took into account the subjective considerations, including the appellant’s youth at the time of the offence and his cognitive impairment. The court recognised that these factors might have contributed to the appellant’s offending behaviour and that they could be relevant in determining an appropriate sentence. The court also considered how best to achieve the purposes of sentencing, including rehabilitation and prevention of further offending. The court noted that there were limited rehabilitation options for the appellant in custody, which might impact his ability to address the underlying issues that contributed to his offending behaviour.

After weighing the objective seriousness of the offence against the subjective considerations, the court concluded that the sentence imposed was manifestly inadequate and unreasonable or plainly unjust. The court found that the original sentence did not adequately reflect the gravity of the offence and failed to consider the appellant’s special circumstances. The court ordered that the appeal be allowed, the conviction be quashed, and a new sentencing hearing be conducted before a different judge. The court emphasised the need for a sentence that appropriately balances the objective seriousness of the offence with the subjective considerations and achieves the purposes of sentencing, including rehabilitation and prevention of further offending.

Orders