Regina v Silcock - [2004] NSWCCA 442

CITATION: Regina v SILCOCK [2004] NSWCCA 442

HEARING DATE(S): 29/11/04

JUDGMENT DATE:
21 December 2004

JUDGMENT OF: James J at 1; Hidden J at 44; Bell J at 46

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Sentencing - Crown Appeal - indecent assault - whether sentencing judge failed to comply with principle of sentencing stated in Pearce - sentencing judge decided not to impose lengthy custodial sentence because of previous sentences passed on respondent - respondent has many health problems

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act

CASES CITED: R v Baxter (unreported, NSWCCA 26 May 1994)
R v MJR (2002) 54 NSWLR 368
Pearce v The Queen (1998) 194 CLR

PARTIES :
Regina v Trevor John SILCOCK

FILE NUMBER(S): CCA 2004/2396

COUNSEL: D M LWoodburne - Crown
A Webb - Respondent

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - Crown
S O'Connor - Legal Aid Commission - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0008

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

2004/2396

JAMES J
HIDDEN J
BELL J
Tuesday 21 December 2004

Regina v Trevor John SILCOCK

Judgment

1 JAMES J: This is a Crown appeal against sentences imposed on the respondent Trevor John Silcock in the District Court by his Honour Judge Freeman on 16 September 2004. On each of five charges of indecent assault, to which the respondent had pleaded guilty, his Honour imposed a sentence of imprisonment for two years commencing on 16 September 2004, all the sentences to be concurrent. His Honour made an order pursuant to s 12 of the Crimes (Sentencing Procedure) Act suspending each sentence, conditionally upon the respondent entering into a recognisance to be of good behaviour during the term of the sentences, accepting the supervision and directions of the Probation and Parole Service and undertaking psychological counselling, if necessary in the opinion of his treating doctor and the officer of the Probation and Parole Service in charge of his case.

2 The victim of all of the five offences was a boy born in June 1971, who I will refer to as “the complainant”. The first two offences were committed between 14 July 1981 and 31 December 1984; the third offence was committed between 1 March 1983 and 31 March 1983; the fourth offence was committed between 1 March 1983 and 1 February 1984; and the fifth offence was committed between 1 February 1984 and 28 June 1985. All of the five charges were brought pursuant to s 61E(1) of the Crimes Act (now repealed), under which the maximum sentence was imprisonment for six years.

3 The five offences which were charged were a few only of the acts of sexual assault committed by the respondent on the complainant between 1981 and 1985. Many of the acts of sexual assault had been so similar that the complainant was unable to individually distinguish them.

4 Although the offences for which the respondent was sentenced had been committed between 1981 and 1985, the complainant did not report…

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 Silcock

Details

AGLC: Regina v Silcock [2004] NSWCCA 442
Case: [2004] NSWCCA 442
Decision Date: 21 December 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentence imposed on the respondent, Silcock, who had been found guilty of indecent assault. The sentencing judge had elected not to impose a lengthy custodial sentence, citing Silcock's previous convictions and his numerous health problems. The Crown argued that the sentencing judge had failed to properly consider the principle of sentencing set out in Pearce, which requires a court to impose a sentence that is commensurate with the gravity of the offence.

The primary legal issue before the court was whether the sentencing judge had correctly applied the principle of sentencing in Pearce. Specifically, the court needed to determine whether the sentencing judge had erred in deciding not to impose a lengthy custodial sentence due to Silcock's previous sentences and his health problems. The court also had to consider whether the sentence imposed was appropriate in the circumstances.

In determining the appeal, the court held that the sentencing judge had not properly applied the principle of sentencing in Pearce. The court found that the sentencing judge had placed too much emphasis on Silcock's previous sentences and his health problems, and had not adequately considered the gravity of the offence. The court noted that the principle in Pearce requires a court to impose a sentence that is commensurate with the seriousness of the offence, and that this principle must be applied even in cases where the offender has previous convictions or health problems. The court found that the sentence imposed was manifestly inadequate and ordered that Silcock be re-sentenced.

The court ordered that Silcock be re-sentenced, and directed that the sentencing judge consider the principle of sentencing in Pearce and the seriousness of the offence. The court also directed that the sentencing judge take into account Silcock's previous convictions and health problems, but that these factors should not be determinative in deciding the appropriate sentence.

Orders