R v XX

Case [2017] NSWCCA 90 10 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v XX [2017] NSWCCA 90
Hearing dates: 5 April 2017
Date of orders: 10 May 2017
Decision date: 10 May 2017
Before: Bathurst CJ at [1];
R A Hulme J at [2];
Beech-Jones J at [3]
Decision:
(1)   Appeal allowed;

(2)   Set aside the aggregate sentence imposed by the District Court on 28 October 2016 and amended on 29 November 2016;

(3)   In lieu thereof:

   (a)   impose an aggregate sentence of 9 years imprisonment to commence on 24 July 2015 and expire on 23 July 2024;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) 1999 Act set a non-parole period of 6 years imprisonment;
    (c)   the applicant will become eligible to be released on parole upon the expiry of the non‑parole period on 23 July 2021.
Catchwords: SENTENCING – CROWN APPEAL – Respondent sexually abused his 4-year-old daughter – three offences – District Court imposed aggregate sentence of 7 years imprisonment with a non‑parole period of 4 years and 6 months – Respondent provided information to prosecuting authorities in relation to a conspiracy to murder six years prior to abusing his daughter – received financial reward – sentencing judge afforded discount of 15% under s 23 of the Crimes (Sentencing Procedure) Act 1999 –interpretation, scope and purpose of s 23 – assistance to authorities provided by Respondent fell within s 23(1) of Sentencing Act – found sentencing judge erred in failing to consider whether the absence of any relationship between the offending the subject of the assistance and the offences committed by the Respondent warranted the grant of any discount on account of assistance – found that discount for assistance was unreasonable – whether sentencing judge erred in assessing objective seriousness of one of the sexual assault offences – whether sentencing judge erred in not finding that one of the sexual assault offences was aggravated by a breach of trust – error established in failure to find offence was aggravated by a breach of trust but not in relation to characterisation of sexual assault offence – whether aggregate sentence was manifestly inadequate – sentence manifestly inadequate because of discount for assistance and relationship between indicative sentences and aggregate sentence – residual discretion not to intervene not exercised – Respondent resentenced – aggregate sentence of 9 years imprisonment with non-parole period of 6 years imposed.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Amendment) Bill 1991
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Crimes Act 1900
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Criminal Appeal Act 1912
Criminal Legislation (Amendment Act) 1992
Criminal Procedure Act 1986
Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001
Interpretation Act 1987
Sentencing Act (Interpretation Act
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
CMB v Attorney General…

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 XX

Details

AGLC: R v XX [2017] NSWCCA 90
Case: [2017] NSWCCA 90
Decision Date: 10 May 2017

CaseChat Overview and Summary

In the case of R v XX, the respondent was convicted of sexually abusing his four-year-old daughter on three separate occasions. The case was heard in the NSW Court of Criminal Appeal, where the Crown appealed the sentence imposed by the District Court. The District Court had sentenced the respondent to an aggregate term of imprisonment of seven years with a non-parole period of four years and six months. The appeal centred on the interpretation and application of section 23 of the Crimes (Sentencing Procedure) Act 1999, which allows for a discount in sentence if the offender provided substantial assistance to prosecuting authorities.

The Court was required to determine whether the sentencing judge had correctly applied the discount under section 23 of the Sentencing Act, and whether the judge had erred in characterising the seriousness of one of the sexual assault offences, specifically whether it was aggravated by a breach of trust. Additionally, the Court had to consider whether the aggregate sentence was manifestly inadequate. The Court found that the sentencing judge had erred by not considering whether the absence of any relationship between the offence for which the respondent provided assistance and the offences committed warranted a discount for assistance. The Court also determined that the judge had erred in not finding that one of the sexual assault offences was aggravated by a breach of trust.

The Court of Criminal Appeal found that the discount for assistance was unreasonable and that the aggregate sentence was manifestly inadequate due to the discount for assistance and the relationship between the indicative sentences and the aggregate sentence. The residual discretion not to intervene was not exercised, and the respondent was resentenced to an aggregate sentence of nine years imprisonment with a non-parole period of six years.

Orders