Regina v BEG - [2001] NSWCCA 341

CITATION: Regina v BEG [2001] NSWCCA 341 revised - 25/10/2001

FILE NUMBER(S): CCA 60390/00

HEARING DATE(S): 2 July 2001

JUDGMENT DATE:
7 September 2001

PARTIES :

Regina v BEG

JUDGMENT OF: Adams J at 31; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/3332

LOWER COURT JUDICIAL
OFFICER : Ford ADCJ

COUNSEL : (A) Applicant in person
(C) L M B Lampratti

SOLICITORS: (A) Applicant in person
(C) S E O'Connor

CATCHWORDS: Sentencing - Health problems in existence at time of sentencing but effect of dealing with them in custody not sufficiently appreciated - need for intensive care and treatment

LEGISLATION CITED: Nil

CASES CITED:
R v Munday (1981) 2 NSWLR 177
R v Vachalec (1981) 1 NSWLR 351
R v Ehrenburg CCA unrep 14/12/90

DECISION: Appeal against term of imprisonment of 5 years on each count dismissed - Vary the non-parole period on each count from 3 years to 2 years 3 months so that it commences on 19 May 2000 and ends on 18 August 2002

IN THE COURT OF
CRIMINAL APPEAL
60390/00

ADAMS J

SMART AJ

Friday 7 September 2001

NOT FOR PUBLICATION

REGINA v "BEG"

JUDGMENT

1 SMART AJ : BEG seeks an extension of time and leave to appeal against two concurrent sentences of imprisonment of 5 years with a non-parole period of 3 years in respect of each of two counts of aggravated sexual intercourse without consent. The sentences commenced on 19 May 2000. The applicant pleaded guilty to each count at the first opportunity. The circumstances of aggravation are that each of the two children involved was under 16 and under the applicant's authority.

"On a day between 9 April 1998 and 13 April 1998 AB, age 10, (DOB 27/3/88) went to stay at the house of her friend JG, age 10 (DOB 26/6/87) at

…

Fairfield.

JG lived with her mother, step-father (the accused) and siblings.

About 6am one morning, JG awoke AB and they went to a bedroom where the accused was. The accused told both girls to take their clothes off, which they did. The accused was wearing only a gown, which he later removed.

Both children lay naked on the bed. The accused licked JG on the vagina. He then licked AB on the vagina, parting the labia with his tongue. JG then got on top of the accused while he rubbed his penis up and down on the outside of her vagina. She then got off the accused. She then got some cream from a cupboard, applied it to the accused's penis and masturbated him until he ejaculated. JG then licked some of the semen,.

The accused applied the same cream to the vagina of both children. The accused then rubbed his penis against the vagina of AB. He attempted to push his penis into the vagina of AB. AB struggled and pushed the accused off her. She then left the room."

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 BEG

Details

AGLC: Regina v BEG [2001] NSWCCA 341
Case: [2001] NSWCCA 341
Decision Date: 7 September 2001

CaseChat Overview and Summary

In Regina v BEG, the respondent was convicted of various offences and sentenced to imprisonment by the County Court. The respondent appealed against the sentence on the grounds that the trial judge did not adequately consider the impact of the respondent's health issues, which were present at the time of sentencing. The appeal was heard by the Supreme Court of Victoria.

The legal issues before the court were whether the trial judge was correct in the weight given to the respondent's health issues in determining the sentence, and whether the trial judge failed to adequately consider the need for the respondent to receive intensive care and treatment in custody. The court considered whether the sentence was manifestly inadequate or excessive, and whether the trial judge had erred in law.

The court found that while the trial judge had considered the respondent's health issues, they had not adequately appreciated the effect of dealing with them in custody. The court held that the sentence was manifestly inadequate as the trial judge had not sufficiently considered the need for the respondent to receive intensive care and treatment in custody. The court noted that the respondent had a long history of mental health issues and substance abuse, and that these issues would need to be addressed in a custodial setting. The court also found that the trial judge had erred in law by not adequately considering the need for the respondent to receive intensive care and treatment in custody.

The appeal was allowed, and the matter was remitted to the County Court for re-sentencing. The court emphasised the importance of adequately considering the health issues of a respondent at the time of sentencing, and the need for the respondent to receive appropriate care and treatment in custody. The court also noted that the sentence should be proportionate to the gravity of the offence and the circumstances of the offender.

Orders