R v VR

Case [2024] NSWCCA 91 7 June 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v VR [2024] NSWCCA 91
Hearing dates: 13 March 2024
Date of orders: 7 June 2024
Decision date: 07 June 2024
Before: Mitchelmore JA at [1];
Wright J at [2];
Hamill J at [3]
Decision:
(1) Appeal allowed.
(2) The sentence imposed in the District Court is quashed and in lieu thereof:
(3) The respondent is sentenced to an aggregate sentence of 14 years, 6 months commencing 17 March 2023 and expiring on 16 September 2037 with a non-parole period of 10 years commencing 17 March 2023 and expiring on 16 March 2033.
(4) The respondent will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:
CRIMINAL APPEALS – prosecution appeal against asserted inadequacy of sentence – sexual offences against three separate victims – offences spanning 17 years – 12 counts of sexual intercourse without consent – grave examples – whether aggregate sentence manifestly inadequate – where offences committed against women to whom the offender was married or in a serious relationship – coercive control – sexual assault as punishment – degrading and humiliating conduct – where lengthy period of non-offending – evidence of good character and lack of criminal record – sentences imposed after trial – no evidence of remorse or insight – whether indicative sentences inadequate – combination of lenient sentence and absence of substantial notional accumulation – aggregate sentence manifestly inadequate, unreasonable and unjust – sentence failed to reflect gravity of offending and vindicate dignity of separate victims – residual discretion – respondent re-sentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 61, 61I, 61N(2), 578A
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A, 53A(2)(b)
Criminal Appeal Act 1912 (NSW), s 5D(1)
Criminal Procedure Act 1986 (NSW), ss 166-167

Cases Cited:
CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gabrieli v R [2023] NSWCCA 204
Giacometti v R [2023] NSWCCA 150
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mol v R [2017] NSWCCA 76
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v AD [2020] NSWCCA 275
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim…

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 VR

Details

AGLC: R v VR [2024] NSWCCA 91
Case: [2024] NSWCCA 91
Decision Date: 07 June 2024

CaseChat Overview and Summary

The appeal in this case concerns the adequacy of the sentence imposed upon the respondent following his conviction for multiple counts of sexual assault against three separate women. The offences spanned a period of 17 years and included instances of sexual intercourse without consent. The respondent was married to one of the victims and in a serious relationship with the others at the time of the offences. The primary legal issue before the court was whether the aggregate sentence imposed by the trial judge was manifestly inadequate, unreasonable, and unjust. The court considered the severity of the crimes, the coercive control exercised by the respondent over the victims, and the absence of remorse or insight demonstrated by him.

The court examined the nature of the offences, which involved significant breaches of trust and involved acts of degradation and humiliation. The offences were described as grave examples of sexual assault, with the coercive control exerted by the respondent contributing to the gravity of the crimes. Despite the lengthy period during which the respondent did not offend and evidence of his good character, the court was of the view that the sentences imposed failed to reflect the gravity of the offending and to vindicate the dignity of the separate victims. The court also noted the absence of substantial notional accumulation, where the trial judge imposed relatively lenient sentences for each offence. The aggregate sentence was considered manifestly inadequate, unreasonable, and unjust.

Upon exercising its residual discretion, the court determined that the sentences imposed were inadequate to reflect the gravity of the respondent's offending and to provide appropriate denunciation and deterrence. The respondent was re-sentenced, with the court emphasising the need for the sentence to appropriately reflect the severity of the crimes and to provide just punishment. The new sentences were intended to uphold the dignity of the victims and to ensure that the punishment was commensurate with the gravity of the offences.

Orders