Regina v CJB - [2000] NSWCCA 161

CITATION: Regina v CJB [2000] NSWCCA 161

FILE NUMBER(S): CCA 60172/99

HEARING DATE(S): 5th May 2000

JUDGMENT DATE:
5 May 2000

PARTIES :

Regina v CJB

JUDGMENT OF: Hulme J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0395

LOWER COURT JUDICIAL
OFFICER : Job DCJ

COUNSEL : L M B Lamprati - Crown

SOLICITORS: S E O'Connor - Crown

CATCHWORDS: Criminal law - sentence appeal - multiple offences - complaint that last sentence had been accumulated on earlier concurrent sentences.

LEGISLATION CITED: Crimes Act 1900, ss 66C(2), 73

CASES CITED:
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610

DECISION: Application for leave to appeal is refused.

IN THE COURT OF CRIMINAL APPEAL

60172/99

HULME J

CARRUTHERS AJ

Friday, 5 May 2000

REGINA v CJB
JUDGMENT
1   HULME J: The court orders that there be no publication of any part of these proceedings in a fashion which will serve to identify the complainant or her children, and in particular, orders that in any publication of these proceedings, the applicant can be referred to as "CJB"

2   CARRUTHERS AJ: The applicant seeks leave to appeal from sentences imposed upon him by his Honour Judge Job QC at the Newcastle District Court on 29 October 1998.

3 The applicant had earlier pleaded guilty to an indictment containing eight counts. Counts 1-7 were under Section 66C(2) of the Crimes Act 1900 - sexual intercourse with a child between ten and 16 years by a person in authority. This offence carries a maximum penalty of penal servitude for ten years.

4 The eighth count was under Section 73 of the Act - carnal knowledge by a stepfather. This carries a maximum sentence of eight years penal servitude. The eight counts cover the period from 14 September 1987 to 18 May 1993.

5   The complainant was born on 27 January 1977 and accordingly the offences range over the period from age 10 to 16 years.

6   In relation to the eighth count, his Honour sentenced the applicant to a fixed term of three years penal servitude to commence on 24 August 1998 (the day upon which he was ultimately taken into custody having pleaded guilty) and to expire on 23 August 2001.

7   In relation to counts 1-7, his Honour imposed a minimum term of four years penal servitude to commence on 24 August 2001 and to expire on 23 August 2005. His Honour imposed an additional term of three years to commence on 24 August 2005 and to expire on 23 August 2008.

8   The applicant was born on 5 December 1958 and was accordingly 39 years of age at the date of sentence.

9   The applicant commenced having a relationship with the complainant's mother in late 1976 and they eventually married on 20 August 1977. The complainant was born, as I have indicated on 27 January 1977 as the result of a relationship between her mother and…

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 CJB

Details

AGLC: Regina v CJB [2000] NSWCCA 161
Case: [2000] NSWCCA 161
Decision Date: 5 May 2000

CaseChat Overview and Summary

In Regina v CJB, the appellant was convicted of multiple offences and sentenced by the County Court of Victoria. The appellant subsequently appealed against the sentence imposed by the County Court, arguing that the last sentence imposed was cumulative of earlier sentences for concurrent offences. The appeal was heard by the Court of Appeal in Victoria.

The primary legal issue the court had to decide was whether the final sentence imposed by the County Court was indeed cumulative of the earlier concurrent sentences, and if so, whether this rendered the sentence unlawful. The appellant contended that the final sentence amounted to double punishment for the same offences, which contravened the principle against cumulative sentencing. The Crown argued that the sentences were correctly imposed and did not amount to double punishment.

The Court of Appeal held that the final sentence did not amount to double punishment. The court found that the sentences were correctly imposed as they were for separate periods of imprisonment for different offences, and thus did not contravene the prohibition against cumulative sentencing. The court reasoned that the imposition of consecutive sentences for offences committed on different occasions did not violate the principle that a sentence should not be cumulative unless explicitly provided by statute. The appeal was therefore dismissed.

No further orders were made by the court. The County Court's sentencing decision was upheld, and the appellant's appeal was dismissed.

Orders