Macfarlan JA at [1]; Adamson J at [2]; Beech-Jones J at [3]
Decision:
(1) Leave to appeal be granted. (2) The appeal be dismissed.
Catchwords:
CRIMINAL LAW – appeal - appeal against sentence – offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in referring to sexual act constituting sexual intercourse “in this country” – whether sentencing judge erred in approach to specific deterrence – whether sentence imposed was manifestly excessive – consideration of sentences imposed for comparable offences – leave granted – appeal dismissed
BEECH-JONES J: This is an application for leave to appeal from a custodial sentence imposed by his Honour Judge Colefax SC in the District Court on 6 February 2019 for an offence of having sexual intercourse with another person without their consent contrary to s 61I of the Crimes Act 1900. At the time of sentencing, another offence under s 61I was included…
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.
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Details
AGLC
Rahman v The Queen [2020] NSWCCA 13
Case
[2020] NSWCCA 13
Decision Date
CaseChat Overview and Summary
The case of Rahman v R involved an appellant who was convicted of the offence of having sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the judge had erred in referring to the sexual act as "in this country" and that there was an incorrect approach to specific deterrence. The appellant further contended that the sentence was manifestly excessive when compared to sentences imposed for similar offences. The appeal was heard by the court, which granted leave to appeal and ultimately dismissed the appeal.
The central legal issues before the court were whether the sentencing judge had erred in their reference to the sexual act as "in this country" and whether there was an incorrect approach to specific deterrence. Additionally, the court considered whether the sentence imposed was manifestly excessive, taking into account sentences imposed for comparable offences.
In its reasoning, the court found that the sentencing judge's reference to the sexual act as "in this country" did not constitute an error, as it was a reasonable interpretation of the context of the offence. The court also found that there was no incorrect approach to specific deterrence, as the sentencing judge had appropriately considered the appellant's circumstances and the need to deter the appellant and others from committing similar offences. Furthermore, the court held that the sentence imposed was not manifestly excessive, as it was proportionate to the gravity of the offence and consistent with sentences imposed for comparable offences. As a result, the appeal was dismissed.