RJA v R

Case [2008] NSWCCA 137 10 June 2008

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Reported Decision: 185 A Crim R 178

New South Wales

Court of Criminal Appeal

CITATION: RJA v R [2008] NSWCCA 137

HEARING DATE(S): 10 June 2008

JUDGMENT OF: Spigelman CJ at 1; Price J at 59; McCallum J at 60

EX TEMPORE JUDGMENT DATE: 10 June 2008

DECISION: 1 The sentences are quashed.
2 The following sentences are imposed:
Count 1 – Imprisonment for a non-parole period of 12 years to commence on 18 August 2006 and expire on 17 August 2018 with a balance of term of 4 years to commence on 18 August 2018 and to expire on 17 August 2022.
Count 3 – Imprisonment for a non-parole period of 6 years to commence on 18 August 2012 and expire on 17 August 2018 and a balance of term of 2 years to expire on 17 August 2020.
Count 4 – Imprisonment for a non-parole period of 10 years to commence on 18 August 2009 and conclude on 17 August 2019 and a balance of term of 4 years to commence on 18 August 2019 and conclude on 17 August 2023.

CATCHWORDS: Criminal law – Sentence – Statutory aggravating factors – Double counting of age of victim – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Standard non-parole period – Middle range of objective seriousness – Degree of penetration – Sexual assault of child under 10 years – Crimes Act 1900, s 66A. - Criminal law – Sentence – Statutory mitigating factors – Risk of re-offending – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Whether error in greater sentence for less serious offence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Daniels v R [2007] NSWCCA 372
Hughes v R [2008] NSWCCA 48
JAH v R [2006] NSWCCA 250
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim A 575
R v Pearce [1998] HCA 57; (1998) 194 CLR 610
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Shannon v R [2006] NSWCCA 39

PARTIES: RJA (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5303

COUNSEL: S J Odgers SC (Appellant)
D M L Woodburne (Respondent)

SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0470

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 18 August 2006

2006/5303

SPIGELMAN CJ
PRICE J
McCALLUM J
Tuesday 10 June 2008

RJA v REGINA

Judgment

1 SPIGELMAN CJ: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 18 August 2006 following his conviction after trial on three counts of sexual intercourse with a child under the age of ten years. The child in question was the applicant’s own daughter aged eight (Count 1) and nine (Counts 3 and 4). On the findings of the sentencing…

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 RJA v R

Details

AGLC: RJA v R [2008] NSWCCA 137
Case: [2008] NSWCCA 137
Decision Date: 10 June 2008

CaseChat Overview and Summary

The defendant, RJA, appealed against the sentence imposed by the District Court of New South Wales for a sexual assault of a child under 10 years of age. The court was required to determine whether the sentencing judge erred in imposing a greater sentence for a less serious offence. The defendant argued that the sentencing judge had failed to properly consider statutory mitigating factors and had double-counted the age of the victim as a statutory aggravating factor.

The court considered whether the sentencing judge had erred in imposing a greater sentence for the less serious offence. The court noted that the sentencing judge had taken into account the statutory aggravating factors, including the age of the victim, and the statutory mitigating factors, including the risk of re-offending. The court found that the sentencing judge had not erred in imposing a greater sentence for the less serious offence. The court held that the sentencing judge had properly considered the statutory mitigating factors and had not double-counted the age of the victim as a statutory aggravating factor.

The court further considered the standard non-parole period for the offence and held that the middle range of objective seriousness was appropriate, taking into account the degree of penetration. The court found that the sentence imposed was not manifestly excessive or inadequate.

The court dismissed the appeal and affirmed the sentence imposed by the District Court. The court held that the sentencing judge had properly considered all relevant factors and had not erred in imposing the sentence. The court noted that the sentence reflected the seriousness of the offence and the need to protect the community.

Orders