Regina v Andrews - [2001] NSWCCA 428

CITATION: Regina v Andrews [2001] NSWCCA 428

FILE NUMBER(S): CCA 60518/00

HEARING DATE(S): Friday 12 October 2001

JUDGMENT DATE:
12 October 2001

PARTIES :

Regina v Robert Murray Andrews

JUDGMENT OF: Grove J at 1; Howie J at 11

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0474

LOWER COURT JUDICIAL
OFFICER : Coolahan DCJ

COUNSEL : E.A. Wilkins (Crown)
J.S. Andrews (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED SEXUAL INTERCOURSE WITHOUT CONSENT - DISCUSSION OF SERIOUSNESS OF PARTICULAR FORM OF SEXUAL ACT - SPECIAL CIRCUMSTANCES

CASES CITED:
R v Thomson 2000 49 NSWLR 383
R v O'Donnell CCA Unrep 1 July 1994
R v Keong 2001 NSWCCA 416

DECISION: APPEAL DISMISSED

60518/00

GROVE J
HOWIE J

Friday 12 October 2001

REGINA v ROBERT MURRAY ANDREWS

JUDGMENT

1 GROVE J: The applicant appeared before his Honour Judge Coolahan in the Newcastle District Court. He had on the second day of the trial, but before the complainant had given evidence, pleaded guilty to a count of threatening actual bodily harm with an offensive weapon and thereafter having sexual intercourse without consent. His Honour also dealt with a charge of assault occasioning actual bodily harm to which the applicant had previously pleaded guilty. That offence had involved the same victim and had in fact occurred shortly after the offence which I have first mentioned. His Honour also took into account three counts of deemed supply of prohibited drug. There were three different drugs involved, cannabis, cocaine and amphetamine. These were taken into account on a Form 1. The overall sentence imposed by his Honour was an enveloping term on the first count of six years imprisonment with a non-parole period of four and a half years. The non-parole period was ordered to commence on 22 August 1999, and therefore the applicant would be eligible for parole from 21 February 2004.

2 The applicant is aged now 30 years. He is not without prior record. The more serious offences on his record involve activity with drugs, in 1995 he had been sentenced to two years imprisonment on charges of supplying a prohibited drug. He had been dealt with on two previous occasions for various offences by being released upon recognizances to be of good behaviour. He was not on parole nor the subject of a recognizance at the time of the current offences.

3 It is appropriate to relate some of the facts regarding what I have described as the principal offence. I extract these from the remarks on sentence of Coolahan DCJ. The applicant and the victim had been in a defacto relationship on and off for a number of years. On the date in question they had an argument. It is said, so his Honour observed, to have centred around the victim’s reluctance to drive the applicant about the Singleton area to retrieve money from alleged drug sales made by him. The victim agreed to drive him only after…

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 Regina v Andrews

Details

AGLC: Regina v Andrews [2001] NSWCCA 428
Case: [2001] NSWCCA 428
Decision Date: 12 October 2001

CaseChat Overview and Summary

The appeal was heard in the High Court of Australia. The case involved a man, Andrews, who had been convicted of aggravated sexual intercourse without consent. The primary issue was the severity of the sentence imposed, with the defence arguing that the original sentence was too harsh. The Crown argued for the maintenance of the sentence, citing the egregious nature of the crime. The court had to decide whether the original sentence was appropriate given the special circumstances of the case.

The legal issues before the court were the adequacy of the original sentence and whether the trial judge had appropriately considered the special circumstances. The court needed to determine if the sentence was proportionate to the gravity of the crime and whether the trial judge had correctly applied the principles of sentencing. The special circumstances mentioned in the case were the particularly degrading nature of the sexual act committed by the appellant.

In its reasoning, the court found that the trial judge had indeed considered the special circumstances and had appropriately applied the principles of sentencing. The High Court held that the sentence was not excessive given the severity of the crime. The court noted that the trial judge had taken into account the impact on the victim and the need to deter such conduct. The appeal was dismissed, and the original sentence was upheld as appropriate.

Orders