Regina v J.T.A.C - [2005] NSWCCA 345

CITATION:
Regina v J.T.A.C. [2005] NSWCCA 345

HEARING DATE(S): 5 October 2005

JUDGMENT DATE:

5 October 2005

JUDGMENT OF:
McClellan CJ at CL at 20; Grove J at 1; Hislop J at 21

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - JUVENILE OFFENDER (13 YEARS) - SERIOUS SEXUAL OFFENCES PERPETRATED ON (HALF) SIBLINGS AGED 5 AND 7 - DEALT WITH AT LAW - RELATIVELY SHORT PERIOD OF CUSTODY - NO ERROR IN ASSESSMENT BY JUDGE AT FIRST INSTANCE

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Pearson [2005] NSWCCA 116
Veen v The Queen (No 2) 1988 164 CLR 465

PARTIES:
Regina v J.T.A.C.

FILE NUMBER(S):
CCA 2005/1826

COUNSEL:
P.Miller (Crown)
C. Smith (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/0280

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

2005/1826

McCLELLAN CJ at CL
GROVE J
HISLOP J
Wednesday 5 October 2005

REGINA v J.T.A.C.

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Freeman DCJ at Coffs Harbour District Court on 3 March 2005. The applicant is a young person born 22 April 1990 who pleaded guilty to an indictment containing four counts. Count 1 charged sexual intercourse with a female child under the age of ten years and counts 2 and 3 charged indecent assault upon the same child who is the applicant’s half sister. At the time of all offences, she was aged five years. The fourth count charged sexual intercourse with a male child under the age of ten years. The victim was the applicant’s half brother who was at the time of offence aged seven years.

2 The facts were put before the Court in an agreed statement, all the detail of which it is not necessary to recount. Briefly, the first count involved an act of fellatio and counts 2 and 3 involved the applicant rubbing his penis against the victim’s bottom and vagina on the respective occasions. The fourth count involved an act of fellatio.

3 Although the applicant was a juvenile he was dealt with at law. The prescribed maximum penalty available for offences such as those charged in counts 1 and 4 was imprisonment for twenty five years, and in respect of counts 2 and 3 imprisonment for ten years.

4 His Honour sentenced the applicant on counts 1 and 4 to imprisonment for two years and six months with a non parole period of nine months to be served concurrently, and on counts 2 and 4, to imprisonment for fixed terms of six months. Although the imposition in respect of count 3 was partially cumulative upon that imposed in respect of count 2, both of the fixed terms were wholly subsumed within the non parole period specified in respect of counts 1 and 4. The sentences were directed to commence upon the date of imposition (3 March 2005) although in fixing the terms his Honour expressly took…

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 J.T.A.C

Details

AGLC: Regina v J.T.A.C [2005] NSWCCA 345
Case: [2005] NSWCCA 345
Decision Date: 5 October 2005

CaseChat Overview and Summary

The case of Regina v J.T.A.C involved a juvenile offender, aged 13, who was convicted of serious sexual offences against his half-siblings, aged 5 and 7. The matter was dealt with at law, and the offender was sentenced to a relatively short period of custody. The offender appealed against the sentence, asserting that the judge at first instance made an error in their assessment. The appeal was subsequently dismissed by the court.

The court was required to determine whether the original sentence imposed by the judge was appropriate and whether there was any error in the assessment of the case. The appeal hinged on the severity and nature of the crimes committed, the age of the offender, and the appropriate sentence for the offences.

The court held that the original sentence was appropriate and that there was no error in the assessment by the judge at first instance. The court found that the crimes were of a serious nature and warranted a custodial sentence. However, the court also took into account the age of the offender and the fact that the offences were committed against younger family members. The court determined that the sentence imposed was commensurate with the gravity of the offences and the offender's age and circumstances. The appeal was dismissed.

The court did not make any orders altering the original sentence imposed by the judge at first instance. The offender's sentence remained unchanged, and the appeal was dismissed in its entirety.

Orders