RJP v Regina - [2006] NSWCCA 149

CITATION: RJP v Regina [2006] NSWCCA 149

HEARING DATE(S): 24 March 2006

JUDGMENT DATE:
16 May 2006

JUDGMENT OF: Hidden J at 1; Kirby J at 2; Hislop J at 11

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Sexual assaults on children - Mitigating factors - Totality - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 61D, 66A, 67, 76
Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(g)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Dar (unreported NSWCCA 2 October 1997)
R v Hearne 124 A Crim R 451

PARTIES: Applicant - RJP
Respondent - Regina

FILE NUMBER(S): CCA 2005/2267

COUNSEL: Applicant - Mr L.M.B. Lamprati SC
Respondent - Mr C.J.G. Smith

SOLICITORS: Applicant - Mr D. McMillian (solicitor)
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1394

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 05/06/2005

- 1 -

2005/2267

HIDDEN J
KIRBY J
HISLOP J
16 May 2006

RJP v REGINA

Judgment

1 HIDDEN J: I agree with the orders proposed by Hislop J, substantially for his Honour’s reasons. However, I would respectfully adopt the reasoning of Kirby J in relation to ground 1, as I would his Honour’s additional observations in relation to ground 2.

2 KIRBY J: In this matter I have had the advantage of reading the judgment of Hislop J. I agree with the orders proposed (that leave be granted but the appeal be dismissed), substantially for the reasons provided by his Honour. I should like to add certain additional comments.

3 In respect to ground 1, the applicant complains that the sentence imposed on count 1 of the second indictment failed to have regard to the youth of the applicant at the time of the commission of the offence. That count was a charge of carnal knowledge of a girl under the age of 10 years, being the applicant's sister who was then aged 9 years. At the time the applicant was approximately 15 years (there being some uncertainty as to the date of the offence).

4 Having pleaded guilty before Solomon DCJ, the applicant was interviewed by the Probation and Parole Service. At the time of the interview he was 52 years old and recalling the events 37 years earlier. The Probation and Parole Report included the following statement:

"In relation to the offences that occurred prior to him turning 14 years of age, he stated that he was unaware that his behaviour towards his sister was wrong. He claimed that by 14 years of age he began to realise that his behaviour was not acceptable."

5 I accept that the reference to the applicant being 14 was an error and that he was differentiating between his state of mind before count 1 and his appreciation of the unacceptable nature of his conduct as he got older.

6 In sentencing on…

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 RJP v Regina

Details

AGLC: RJP v Regina [2006] NSWCCA 149
Case: [2006] NSWCCA 149
Decision Date: 16 May 2006

CaseChat Overview and Summary

The case of RJP v Regina involved the defendant, RJP, who was convicted of multiple counts of sexual assault against children. The matter was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court. The primary focus of the appeal was whether the sentence was manifestly excessive, considering the totality of the circumstances and the mitigating factors presented.

The legal issues before the court centred on the principles of sentencing in cases involving sexual offences against children. The court had to consider the severity of the crimes, the nature of the relationship between the offender and the victims, and the personal circumstances of the offender that might be considered as mitigating factors. The key question was whether, in light of these factors, the sentence imposed was manifestly excessive.

The High Court reviewed the sentencing process and examined the mitigating factors presented by the defence. These included the offender’s remorse, the absence of a prior criminal record, and the personal circumstances that might have contributed to the offending behaviour. The court held that while the crimes were severe, the sentence did not appear to be manifestly excessive when considering the totality of the circumstances. The court concluded that the sentence was appropriate and balanced the need for punishment with the mitigating factors presented.

The High Court dismissed the appeal, affirming the sentence imposed by the lower court. This decision underscored the importance of a comprehensive approach to sentencing in cases involving sexual offences against children, ensuring that both the gravity of the crimes and the mitigating factors are adequately weighed.

Orders