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Rainbow v R

Rainbow v R

Case [2018] NSWCCA 42 21 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rainbow v R [2018] NSWCCA 42
Hearing dates: 7 February 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Beazley P: [1]
Garling J: [2]
Hidden AJ: [3]
Decision:
Leave to appeal granted. Appeal allowed.
Quash the sentence passed in the District Court and, in lieu, sentence the applicant to a non-parole period of 2 ½ years, commencing on 27 November 2015 and expiring on 26 May 2018, and a balance of term of 1 ½ years, commencing on 27 May 2018 and expiring on 26 November 2019. The applicant would be eligible for release on parole on 27 May 2018.

Catchwords: CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child between the ages of 14 and 16 – circumstance of aggravation victim’s cognitive impairment – whether sentencing judge erred in describing applicant’s conduct as a breach of trust – whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 ss 61M, 61H, 66C
Crimes (Sentencing Procedure) Act 1999, s 21
Cases Cited: Cowling v R [2015] NSWCCA 213
Hili v The Queen, Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
R v JF [2017] NSWCCA 217
R v Nelson [2016] NSWCCA 130
Veen v The Queen [No. 2] (1987-88) 164 CLR 465
Wakeling v R [2016] NSWCCA 33, and R v JF [2017] NSWCCA 217
Category: Principal judgment
Parties: Regina
Trevor John Rainbow
Representation:
Counsel:
Ms H Roberts – (Crown)
Mr D Carroll – (Applicant)
Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid Commission NSW

File Number(s): 2015/349703
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2016

Before:

Buscombe DCJ

File Number(s):

2015/349703

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden AJ. I agree with his Honour’s reasons and proposed orders.
GARLING J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Trevor John Rainbow, pleaded guilty in the District Court to a charge of aggravated sexual intercourse with a child between the ages of 14 and 16 years old, the circumstance of aggravation being that the victim had a cognitive impairment. This is an offence under s 66C(4) and (5)(f) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 12 years and a standard non-parole period of 5 years. He was sentenced to imprisonment for 6 years, comprising a non-parole period of 4 years and a balance of term of 2 years, commencing on 27 November 2015. In passing that sentence, the sentencing judge took into account a related offence of aggravated indecent assault, an offence under s 61M(2) of the Crimes Act, carrying a maximum sentence of imprisonment for 10 years and a standard non-parole period of 8 years. (Although it is not specified in the Form 1, presumably this circumstance of aggravation…

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 Rainbow v R

Details

AGLC: Rainbow v The Queen [2018] NSWCCA 42
Case: [2018] NSWCCA 42
Decision Date: 21 March 2018

CaseChat Overview and Summary

Rainbow appealed against their conviction and sentence for the aggravated sexual intercourse with a child between the ages of 14 and 16. The victim had a cognitive impairment. The appeal was heard in the High Court of Australia. The primary legal issues the court needed to determine were whether the sentencing judge erred in describing the applicant’s conduct as a breach of trust and whether the sentence was manifestly excessive.

The court examined the sentencing judge’s characterisation of the applicant’s conduct as a breach of trust. The court found that the judge did not err in describing the applicant’s conduct as a breach of trust. The court considered that the victim’s cognitive impairment made them more vulnerable and that the applicant was in a position of trust, which made the sexual intercourse a serious breach of trust. The court also reviewed the sentence to determine if it was manifestly excessive. The court found that the sentence was not manifestly excessive, considering the seriousness of the crime and the need for general deterrence.

The High Court dismissed the appeal, upholding the applicant’s conviction and sentence. The court held that the sentencing judge’s characterisation of the applicant’s conduct as a breach of trust was appropriate, and the sentence was not manifestly excessive. The court emphasised the importance of protecting vulnerable victims and the need for sentences to reflect the gravity of such offences.

Orders