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RS v The Queen

RS v The Queen

Case [2013] NSWCCA 227 9 October 2013

Appeal

Sentencing

Intellectual Property Law

Fiduciary Duty

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RS v R [2013] NSWCCA 227
Hearing dates: 9 September 2013
Decision date: 09 October 2013
Before: Beazley P at [1]
McCallum J at [2]
Schmidt J at [5]
Decision:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The limiting terms imposed by Sides DCJ on 8 February 2013 are quashed.
4. In lieu thereof, the following limiting terms are imposed:
(i) On counts 1, 3 and 5 limiting terms of one month, to commence on 18 October 2011 expiring 17 November 2011.
(ii) On count 2 a limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012.
(iii) On count 4 a limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012.
(iv) On count 6 a limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012.
(v) On count 10 a limiting term of 5 months to commence on 18 February 2012 expiring 17 November 2012.
(vi) On count 11 a limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013.
(vii) On count 8 and 9 limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - sexual assault - intellectual disability - whether there was failure to take into account s 23(6) of the Mental Health Forensic Provisions Act 1990 - not established - whether error in finding that offender engaged in simulated intercourse - not established - failure to make allowance for applicant's good character - not established - failure to take account that the applicant was not fully aware of his actions, because of his mental disability (s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - not established - wrongly imposing a longer sentence based on protection of the community - not established - whether limiting terms imposed were unusually harsh and severe - established - re-sentencing
Legislation Cited: Crimes Act 1900
Mental Health (Criminal Procedure) Act 2005 (repealed)
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990
Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dousha v R [2008] NSWCCA 263
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Essex v R [2013] NSWCCA 11
Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610
R v ABS [2005] NSWCCA 255
R v AN [2005] NSWCA 239
R v Engert (1995) 84 A Crim R 67
R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365
R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
R v PGM [2008] NSWCCA 172 ; (2008) 187 A Crim R 152
Regina v RTI [2005] NSWCCA 337
Veen v R (No 2) [1988] HCA 14

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 RS v The Queen

Details

AGLC: RS v The Queen [2013] NSWCCA 227
Case: [2013] NSWCCA 227
Decision Date: 09 October 2013

CaseChat Overview and Summary

In the matter of RS, the appellant, against the Crown, the respondent, the High Court of Australia was called upon to determine the validity of the sentence handed down by the lower court. The appellant was convicted of sexual assault and was subsequently sentenced. The appellant appealed on several grounds, including that the sentencing judge failed to take into account the provisions of s 23(6) of the Mental Health Forensic Provisions Act 1990, that there was an error in finding that the offender engaged in simulated intercourse, and that the sentencing judge failed to consider the appellant's good character. The appellant also argued that the sentence imposed was excessively harsh and severe.

The court examined each of these grounds of appeal in turn. The court found that there was no failure to take into account the provisions of s 23(6) of the Mental Health Forensic Provisions Act 1990, nor was there an error in finding that the offender engaged in simulated intercourse. The court also found that the sentencing judge did not fail to make allowance for the appellant's good character, and that the sentence imposed was not excessively harsh and severe. However, the court did find that the sentencing judge failed to take account that the appellant was not fully aware of his actions, because of his mental disability. The court also found that the sentencing judge wrongly imposed a longer sentence based on the protection of the community.

The court allowed the appeal and remitted the matter to the sentencing court for re-sentencing. The court found that the sentencing judge had failed to adequately consider the appellant's intellectual disability, which had a significant impact on his ability to understand the nature and quality of his actions. The court also found that the sentence imposed was excessively harsh and severe, given the appellant's intellectual disability and the mitigating factors present in the case. The court ordered that the matter be remitted to the sentencing court for re-sentencing, with directions to take into account the appellant's intellectual disability and the mitigating factors present in the case.

Orders