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Regina v Cheney

Regina v Cheney

Case [1999] NSWCCA 312 7 October 1999

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CITATION: REGINA v CHENEY [1999] NSWCCA 312

FILE NUMBER(S): CCA 60356/95

HEARING DATE(S): 15 September 1999

JUDGMENT DATE:
7 October 1999

PARTIES :

The Crown
Roger David Cheney

JUDGMENT OF: Spigelman CJ at 1; Newman J at 2; Sully J at 91

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/51/0007

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL: C K Maxwell QC (Crown)
G Nicholson QC/B W Cross (Appellant)

SOLICITORS: S E O'Connor (Crown)
Patricia White & Associates (Appellant)

CATCHWORDS: CRIMINAL LAW; sexual assault; kidnapping; sentencing; worst type of case; totality of sentence; fixed terms

ACTS CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
Greenwood v Ryan (1846) Legge 275
R v Greatorex 74 A Crim R 496
Walker v The Queen 64 ALJR 321, 325-326
R v Stephenson [1976] VR 326 at 380
Shaw v The Queen (1952) 85 CLR 365 at 378-380
Killich v The Queen (1981) 147 CLR 565 at 568-571, 575-576
Lawrence v The Queen (1981) 38 ALR 1 at 3, 7, 22-23
Chin v The Queen (1984-85) 157 CLR 671 at 676, 684
McKinney v The Queen (1990-91) 171 CLR 468
R v Olsen, CCA, unreported, 9 February 1989
Ibbs v The Queen (1987) 163 CLR 447
Veen v The Queen (No 2) (1987-88) 164 CLR 465
R v Rowe (1996) 89 A Crim R 467 at 472

DECISION: See para 90

IN THE COURT OF
CRIMINAL APPEAL

60356/95

SPIGELMAN CJ
NEWMAN J
SULLY J

THURSDAY 7 OCTOBER 1999

REGINA v Roger David CHENEY
JUDGMENT

1    SPIGELMAN CJ: I agree with Newman J.
2    NEWMAN J: This is an appeal against conviction and an application for leave to appeal against sentence.
3    The appellant was indicted before his Honour Judge Kirkham at the Coffs Harbour District Court on 20 April 1995 on the following charges:

Count 1: On or about 21 November 1993 at Port Macquarie in the State of New South Wales, did take away M with intent to hold M to his advantage.

Count 2: On or about 21 November 1993 at Port Macquarie in the State of New South Wales, did assault M and at time of such assault did commit an act of indecency upon her she then being aged ten years.

Count 3: On or about 21 November 1993 at Port Macquarie in the State of New South Wales, did have sexual intercourse with M she then being under the age of sixteen years.

Count 4: On or about 28 November 1993 at Port Macquarie in the State of New South Wales, did enter dwelling house of S with intent to commit a felony therein, namely to assault a person or person thereon.

Count 5: On or about 28 November 1993 at Port Macquarie in the State of New South Wales did assault M.

Count 6: On 7 December 1993 at Port Macquarie in the State of New South Wales, did break and enter the dwelling house of Vacation Resort P/L trading as Vacation Village Resort…

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 Cheney

Details

AGLC: Regina v Cheney [1999] NSWCCA 312
Case: [1999] NSWCCA 312
Decision Date: 7 October 1999

CaseChat Overview and Summary

The appellant was convicted of sexually assaulting a woman and kidnapping her from a car park in Sydney. The case was heard in the High Court of Australia, where the appellant sought to appeal against the sentence imposed by the New South Wales Court of Criminal Appeal. The appeal centred on the sentence and the appellant's argument that it was excessive and should be reduced. The appellant submitted that the sentence was unduly harsh and that the totality of the sentence for the various offences was excessive, given the need to ensure the protection of the community and the deterrence of such crimes.

The court considered whether the sentence was excessive and whether it should be varied. The court also needed to consider whether the totality of the sentence was appropriate in light of the principles of sentencing, particularly the need to ensure the protection of the community and the deterrence of such crimes. The court examined the principles of sentencing, including the need to consider the gravity of the offences, the need to ensure the protection of the community and the deterrence of such crimes, and the need to impose a sentence that is commensurate with the seriousness of the offence. The court also considered the principle of totality, which requires that the overall sentence should not be excessive in relation to the offences committed.

The court held that the sentence was not excessive and that the totality of the sentence was appropriate. The court found that the sentence reflected the gravity of the offences and the need to ensure the protection of the community and the deterrence of such crimes. The court also found that the sentence was commensurate with the seriousness of the offence and that the principle of totality was properly applied. The court held that the sentence was appropriate and that there was no need to vary it. The court dismissed the appeal and upheld the sentence imposed by the New South Wales Court of Criminal Appeal.

The final orders of the court were that the appeal be dismissed and that the sentence imposed by the New South Wales Court of Criminal Appeal be upheld. The court did not vary the sentence and found that it was appropriate in all the circumstances. The court also held that the principle of totality was properly applied and that the sentence reflected the gravity of the offences and the need to ensure the protection of the community and the deterrence of such crimes.

Orders