Regina v BWS - [2007] NSWCCA 59

New South Wales
Court of Criminal Appeal

CITATION: R v BWS [2007] NSWCCA 59

HEARING DATE(S): 20 February 2007

JUDGMENT DATE:
9 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 33; Hoeben J at 34

DECISION: Crown appeal allowed; Sentences passed in the District Court quashed; Responent re-sentenced as per paragraph 32 in judgment

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Musso [2002] NSWCCA 487
R v Way (2004) 60 NSWR 168

PARTIES: Regina
BWS

FILE NUMBER(S): CCA 2006/2250

COUNSEL: W. Dawe QC - Crown
S. Odgers SC - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0339

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 30 August 2006

2006/2250
SULLY J
BELL J
HOEBEN J
9 March 2007

REGINA v B.W.S

Judgment

1 SULLY J: This is a Crown appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal has to do with the alleged inadequacies of sentences passed upon the respondent, Mr. S, in the District Court on 30 August 2006.

2 Between 26 October and 1 November 2005 the respondent stood trial in the District Court at Gosford before his Honour Judge C. E. O’Connor QC and a jury. The respondent was so tried upon an indictment containing three counts.

3 Count 1 charged the respondent with an offence of aggravated sexual assault. Such an offence contravenes section 61J(1) of the Crimes Act 1900 (NSW); and it attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. A standard non-parole period of 10 years is prescribed for such an offence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(1).

4 Count 2 alleged a second such offence of aggravated sexual assault. This second offence was alleged by the Crown to have been committed on 28 January 2004. The dating of Count 1 in the indictment was not so precise, the offence charged by that count being laid between 22 September 2003 and 25 December 2003.

5 Count 3 charged an offence of assault occasioning actual bodily harm. Such a charge contravenes section 59 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.

6 The same alleged victim was named in each of the three counts.

7 The learned primary Judge passed upon the respondent three concurrent sentences of imprisonment. His Honour sentenced the respondent, on each of Counts 1 and 2, to a term of imprisonment of 10 years apportioned between a non-parole period of 6 years and a balance of term of 4 years. His Honour sentenced the respondent, in connection with Count 3, to imprisonment for a fixed term of 4 months. As I have said, all three sentences were dated so as to entail that they were served concurrently. This entailed…

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 BWS

Details

AGLC: Regina v BWS [2007] NSWCCA 59
Case: [2007] NSWCCA 59
Decision Date: 9 March 2007

CaseChat Overview and Summary

This is a Crown appeal brought against the adequacy of sentences passed upon the respondent, Mr. S, by the District Court. The appeal concerns three counts against the respondent, all of which were committed against the same complainant. Counts 1 and 2 charged the respondent with offences of aggravated sexual assault, while Count 3 charged the respondent with an offence of assault occasioning actual bodily harm. The District Court passed concurrent sentences on the respondent, sentencing him to imprisonment for 10 years on each of Counts 1 and 2, with non-parole periods of 6 years, and to a fixed term of imprisonment for 4 months on Count 3. The Crown argued that the sentences passed upon the respondent were inadequate and that there were errors in the primary sentencing process. The Court of Criminal Appeal allowed the Crown appeal, quashed the sentences passed upon the respondent in the District Court, and re-sentenced the respondent as per paragraph 32 in the judgment. The Court found that there were two manifest errors in the process of reasoning which led his Honour to pass upon the respondent the sentences now challenged by the Crown. Firstly, the Court found that the District Court failed to apply correctly the sentencing principle established by the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610. Secondly, the Court found that the District Court did not correctly apply the requirements of the standard non-parole regime for which sections 54A and 54B of the Crimes (Sentencing Procedure) Act make provision. The Court of Criminal Appeal re-sentenced the respondent to imprisonment for a fixed term of 4 months on Count 3, and to imprisonment for a non-parole period of 6 years 6 months on each of Counts 1 and 2, with a balance of term of 3 years on each count.

Orders