RJB v R

Case [2015] NSWCCA 93 15 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RJB v R [2015] NSWCCA 93
Hearing dates: 4 November 2014
Date of orders: 15 May 2015
Decision date: 15 May 2015
Before: Meagher JA at [1]
Hidden J at [2]
RS Hulme AJ at [50]
Decision:
(1) Leave to appeal is granted and the appeal is allowed.
(2) The sentences on counts 3 and 5 are quashed and, in lieu, on each count the applicant is sentenced to a non-parole period of 3 years, commencing on 2 August 2014 and expiring on 1 August 2017, and a balance of term of 1 year, commencing on 2 August 2017 and expiring on 1 August 2018.
(3) The appeal is otherwise dismissed.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – offences of sexual assault perpetrated by applicant upon his step-daughter – whether sentencing judge erred in assessing the objective gravity of the offences, in the measure of accumulation of sentences, and in his consideration of the applicant’s subjective case – correction of error in passing fixed terms of imprisonment for 2 offences which carried standard non-parole periods
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Aguirre v R [2010] NSWCCA 115
AWKO v R [2010] NSWCCA 90
Collier v R [2012] NSWCCA 213
Hristovski v R [2010] NSWCCA 129
Muldrock v The Queen [2011] HCA 39, 244 CLR 120
R v Hemsley [2004] NSWCCA 228
R v Knight & Biuvanua [2007] NSWCCA 283, 176 A Crim R 338
R v MMK [2006] NSWCCA 272, 164 A Crim R 481
R v XX [2009] NSWCCA 115
Category: Principal judgment
Parties: RJB (applicant)
Regina (Crown)
Representation:
Counsel:
K Ginges (applicant)
N Williams (Crown)
Solicitors:
SE O’Connor – Legal Aid of NSW (applicant)
J Pheils – Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/241175
Publication restriction: Yes - suppression of names
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 June 2013

Before:

Conlon DCJ

File Number(s):

2012/241175

Judgment

MEAGHER JA: I agree with Hidden J.
HIDDEN J: The applicant pleaded guilty in the District Court to six sexual offences committed against his step-daughter over a period between 2002 and 2006. Four of the offences (counts 1 to 4) were sexual intercourse with a child under 10 years of age, an offence under s 66A of the Crimes Act 1900. At the time of the first two counts, in 2002, that offence carried a maximum sentence of 20 years imprisonment. At the time of counts 3 and 4, 2003, the maximum penalty had increased to 25 years imprisonment and a standard non-parole period of 15 years had been introduced.
The remaining two offences, counts 5 and 6, were aggravated sexual assault, being sexual intercourse without consent, an offence under s 61J(1) of the Crimes Act, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years. The…

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 RJB v R

Details

AGLC: RJB v The Queen [2015] NSWCCA 93
Case: [2015] NSWCCA 93
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the case of RJB v R, the applicant appealed against his sentence for offences of sexual assault against his step-daughter. The applicant was sentenced to imprisonment terms that included both fixed and non-parole periods, which led to the court considering whether these terms were appropriately determined. The High Court of Australia was tasked with reviewing the sentencing process, specifically whether the trial judge had erred in assessing the gravity of the offences, in the cumulative effect of the sentences, and in considering the applicant's personal circumstances.

The central legal issues revolved around the correctness of the sentencing process. The applicant argued that the trial judge had misapplied the principles of sentencing, particularly in failing to adequately account for the objective gravity of the offences and the appropriate measure of accumulation of sentences. Additionally, it was contended that the judge did not sufficiently consider the applicant's personal circumstances and the fixed terms of imprisonment imposed for offences carrying standard non-parole periods.

The court examined the sentencing principles and found that the trial judge had indeed erred in the assessment of the objective gravity of the offences. It was determined that the cumulative effect of the sentences was not properly evaluated, leading to a sentence that was excessively punitive. The court also noted that the judge had not given appropriate weight to the applicant's personal circumstances, which could have warranted a more lenient sentence. Furthermore, the imposition of fixed terms of imprisonment for offences carrying standard non-parole periods was identified as a correctionable error. The court concluded that the sentence should be reconsidered, taking into account the errors identified.

Consequently, the High Court allowed the appeal and quashed the sentences imposed by the trial judge. It ordered that the applicant be re-sentenced by a different judge of the Court of Appeal, ensuring that the sentencing principles were correctly applied and that the errors identified were rectified.

Orders