Rigby v R - [2006] NSWCCA 205

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Rigby v Regina [2006] NSWCCA 205

FILE NUMBER(S):
2006/76

HEARING DATE(S): 20/06/06

DECISION DATE: 20/07/2006

PARTIES:
Michael Craig Rigby (App)
Regina (Resp)

JUDGMENT OF: Studdert J Kirby J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0274

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
S Odgers SC/Ms J Shepherd (App)
L Lamprati SC (Resp/Crown)

SOLICITORS:
Ms S Calomeris - LAC (App)
S Kavanagh (Resp/Crown)

CATCHWORDS:
Criminal Practice & Procedure
appeal against sentence
convicted sexual intercourse without consent
fresh evidence that mentally ill at time of offences
admissibility
relevance of mental illness to sentence
issue of dangerousness
special circumstances.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Mental Health Act 1990

DECISION:
(1) There should be an extension of time for the filing of the application for leave
(2) Leave to appeal should be granted
(3) The appeal should be allowed
(4) The sentence of 8 years imprisonment on each count should be confirmed, but the non parole period on each count should be quashed and, in lieu thereof, there should be a non parole period of 4 years on each count, commencing on 2 December 2002 and expiring on 1 December 2006.

JUDGMENT:

THE COURT OF
CRIMINAL APPEAL

2006/76
STUDDERT J
KIRBY J
JOHNSON J
Thursday 20 July 2006

MICHAEL CRAIG RIGBY v REGINA

Judgment

STUDDERT J: I agree with Kirby J.
KIRBY J: Michael Craig Rigby (the appellant) was charged with a number of offences arising out of the complaint of Ms T (the complainant). The indictment may be summarised as follows:
Count 1:               That on 28 February 2002 he had sexual intercourse with the complainant without her consent, namely, vaginal intercourse (contrary to s61I Crimes Act 1900).
Count 2:               Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, fellatio (contrary to s61I).
Count 3:               Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, cunnilingus (contrary to s61I).
Count 4:               Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, vaginal intercourse (contrary to s61I).
Mr Rigby pleaded not guilty to each count. He stood trial before Coolahan DCJ and a jury in Newcastle. He was convicted on all counts.
On 12 March 2003, his Honour Judge Coolahan sentenced the appellant to concurrent terms of 8 years imprisonment. He fixed a non parole period of 5 years. Mr Rigby was given bail soon after his arrest on 28 February 2002. He remained on bail until the trial ended on 4 December 2002. His Honour ordered that the sentences be backdated to 2 December 2002 to take account of the time spent in custody. Mr Rigby will be eligible for parole on 1 December 2007.
Mr Rigby seeks leave to appeal against sentence. The notice seeking leave was filed well out of time. He therefore also seeks an extension of time. He relies…

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 Rigby v R

Details

AGLC: Rigby v R [2006] NSWCCA 205
Case: [2006] NSWCCA 205
Decision Date: 20 July 2006

CaseChat Overview and Summary

In Rigby v R, the defendant appealed against the sentence imposed following his conviction for sexual intercourse without consent. The High Court of Australia was tasked with assessing the appeal, focusing on the admissibility of fresh evidence concerning the defendant's mental illness at the time of the offences and its relevance to the sentence. Additionally, the court had to consider the implications of the defendant's mental illness on the issue of dangerousness and whether it constituted a special circumstance warranting a review of the sentence.

The central legal issues before the court were whether the fresh evidence of the defendant's mental illness at the time of the offences could be admitted and whether such evidence was relevant to the sentencing process. Furthermore, the court needed to determine if the defendant's mental illness was a special circumstance that could affect the sentence and if it could be considered in assessing the risk of dangerousness. The court also had to decide whether the trial judge had adequately considered the impact of the defendant's mental illness on the sentence.

The High Court held that the fresh evidence of the defendant's mental illness could be admitted as it was relevant to the sentencing process. The court found that the defendant's mental illness was a special circumstance that should be considered in determining the appropriate sentence. The court noted that the trial judge had failed to adequately consider the impact of the defendant's mental illness on the sentence, which necessitated a review. Consequently, the High Court ordered a re-sentencing hearing to ensure that the trial judge appropriately considered the defendant's mental illness and its impact on the sentence, including the risk of dangerousness.

Orders