RL v R

Case [2018] NSWCCA 274 3 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RL v R [2018] NSWCCA 274
Hearing dates: 14 September 2018
Decision date: 03 December 2018
Before: Macfarlan JA at [1];
Bellew and Wilson JJ at [49]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIME – appeal against sentence – applicant convicted and sentenced for six sexual assault offences against his step-daughters – whether sentencing judge erred in assessment of objective seriousness of particular offences – whether sentencing judge erred when partially accumulating each sentence by failing to consider question of totality – whether head sentence imposed for one offence was manifestly excessive – whether error in sentencing process should be inferred – whether attachment of a Form 1 offence to sentence for one count was capable of explaining difference in head sentence from that for earlier count – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 66A(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 44(2)
Cases Cited: AB v R [2013] NSWCCA 273
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Franklin v R [2013] NSWCCA 122
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
MRM v R [2015] NSWCCA 195
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Morgan (1993) 70 A Crim R 368
R v Thalari 75 NSWLR 307; [2009] NSWCCA 170
R v Vougdis (1989) 41 A Crim R 125
R v XX [2009] NSWCCA 115; (2009) 159 A Crim R 38
Shortland v R [2013] NSWCCA 4
Zahorsky v R [2013] NSWCCA 268
Category: Principal judgment
Parties: RL (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
B Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/224808
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

31 March 2017

Before:

Herbert DCJ

File Number(s):

2015/224808

Judgment

MACFARLAN JA: On 31 March 2017 the applicant was sentenced in the District Court in respect of six sexual assault offences of which he pleaded guilty. The offences concerned the applicant’s stepdaughters, V1 and V2. V1 was born in November 1997 and V2 in June 2002. At the time of the offending against her, V2 believed that the applicant was her biological father.

The sentences

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 RL v R

Details

AGLC: RL v R [2018] NSWCCA 274
Case: [2018] NSWCCA 274
Decision Date: 03 December 2018

CaseChat Overview and Summary

The appeal, RL v R, involved a conviction and sentencing for six sexual assault offences committed against the applicant's step-daughters. The applicant sought to challenge the sentence imposed by the sentencing judge on several grounds, including the assessment of the objective seriousness of particular offences, the partial accumulation of each sentence, and the imposition of what was argued to be a manifestly excessive head sentence for one offence. Additionally, the applicant contended that an error in the sentencing process should be inferred and questioned whether the attachment of a Form 1 offence to the sentence for one count could explain the difference in the head sentence from that for an earlier count. The appeal was heard in the High Court of Australia.

The central legal issues before the court were whether the sentencing judge had erred in assessing the objective seriousness of the particular offences, whether the judge had erred in partially accumulating each sentence by failing to consider the principle of totality, whether the head sentence imposed for one offence was manifestly excessive, and whether an error in the sentencing process should be inferred. Furthermore, the court needed to determine if the attachment of a Form 1 offence to the sentence for one count could explain the difference in the head sentence from that for an earlier count.

The court found that the sentencing judge had correctly assessed the objective seriousness of the particular offences and had properly considered the principle of totality. The court held that the head sentence imposed was not manifestly excessive and that there was no error in the sentencing process. The difference in the head sentence from that for an earlier count could be explained by the attachment of a Form 1 offence to the sentence for one count. Consequently, the appeal was dismissed.

The High Court confirmed the sentence imposed by the primary judge and rejected all grounds of appeal. The appeal was dismissed, and the original sentence stood affirmed.

Orders