Regina v Ellmore - [2002] NSWCCA 242

CITATION: REGINA v. ELLMORE [2002] NSWCCA 242 revised - 15/10/2002

FILE NUMBER(S): CCA No. 60031 of 2002

HEARING DATE(S): Wednesday 19 June 2002

JUDGMENT DATE:
19 June 2002

PARTIES :

REGINA v.
ELLMORE, Robert

JUDGMENT OF: Greg James J at 1; Smart AJ at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0617; 01/11/1094

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ.

COUNSEL : Crown: D. Frearson
App: P.G. Berman, SC.

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - sentence - appeal - paedophile - offences against young girls - appropriate commencement date for sentences - offences committed while on parole - special circumstances found - need to reflect them in parole period.

LEGISLATION CITED: Justices Act 1902
Crimes Act 1900

CASES CITED:
Ryan (2001 75 ALJR 815
McHugh (1985) 1 NSWLR 588
English [2000] NSWCCA 245
Thomson & Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal against the sentences be granted. The appeal allowed in part. Dismiss appeals against the sentences of the fixed period of 15 months on each of counts one, two and three of the indictment but vary the date of commencement of each such sentence to 24 April 2001 to expire on 23 July 2002. Dismiss the appeal against the sentence imposing a fixed period of imprisonment of three years on the s.51A committal sentence for the offence of assault and act of indecency in September 1984 but vary the date of commencement of such sentence to 24 April 2001 to expire on 23 April 2004. Allow the appeal against the sentences on counts four and five of the indictment. Quash those sentences and in lieu of the sentences imposed, sentence the applicant on each count to imprisonment for seven years commencing on 24 April 2004. Impose a non?parole period in respect of those sentences of three years, eight months commencing that day, that is 24 April 2004 and expiring on 23 December 2007, on which date the applicant is eligible for release on parole.

No. 60031 of 2002

GREG JAMES, J.
SMART, AJ.
WEDNESDAY 19 JUNE 2002

REGINA v. ROBERT ELLMORE

Judgment

1 GREG JAMES, J: This is an application for leave to appeal against the sentences imposed on the applicant in the District Court of New South Wales in consequence of the applicant's committal for sentence under the provisions of s.51A of the Justices Act 1902 and in consequence of the applicant's pleas of guilty on arraignment on additional charges on an indictment.

2 The applicant had pleaded guilty on two different days in the Central Local Court in respect of the matters on which he was committed for sentence to the District Court. He had, in the District Court, entered his plea to the charges on the indictment on 6 December 2001. He was sentenced on 18 January 2002. The trial judge had dated the commencement of the sentences he imposed only from the dates he expressed on the date of their imposition. The applicant had,…

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 Ellmore

Details

AGLC: Regina v Ellmore [2002] NSWCCA 242
Case: [2002] NSWCCA 242
Decision Date: 19 June 2002

CaseChat Overview and Summary

The appellant in this matter, Ellmore, appealed against his sentences for various sexual offences against young girls, arguing that the trial judge should have ordered his sentences to commence from the date of his release from parole. Ellmore had been previously convicted of sexual offences against children and was on parole at the time he committed the current offences. The trial judge ordered that the sentences for the current offences commence from the date of conviction. Ellmore submitted that the sentences should have started from the date of his release from parole. The appeal was against the appropriateness of the commencement date for the sentences.

The court considered whether the trial judge was correct in ordering the sentences to commence from the date of conviction. The court found that the trial judge had considered the special circumstances of the case, including the fact that the offences were committed while Ellmore was on parole, and had ordered the sentences to commence from the date of conviction. The court found that the trial judge had not erred in ordering the sentences to commence from the date of conviction, as the parole period was already taken into account in the overall sentence. The court held that the trial judge had appropriately reflected the special circumstances in the overall sentence, including the parole period.

The appeal was dismissed. The court found that the trial judge had appropriately exercised his discretion in ordering the sentences to commence from the date of conviction. The court held that the trial judge had taken into account the special circumstances of the case, including the fact that the offences were committed while Ellmore was on parole, and had ordered the sentences to commence from the date of conviction. The court found that the trial judge had appropriately reflected the special circumstances in the overall sentence, including the parole period. The appeal was dismissed, and the original sentences were upheld.

Orders