RWB v R

Case [2008] NSWCCA 93 23 May 2008

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BRADBERY v REGINA [2008] NSWCCA 93
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/3551

HEARING DATE(S):
4 March 2008

JUDGMENT DATE:
23 May 2008

PARTIES:
BRADBERY v Regina

JUDGMENT OF:
Mason P Latham J Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0017

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
16 July 2007

COUNSEL:
Crown: L. Wells
Applicant: A. Haesler SC

SOLICITORS:
S. Kavanagh (Director of Public Prosecutions)
S. O'Connor (Legal Aid Commission of NSW)

CATCHWORDS:
CRIMINAL LAW: Sentence – sexual assaults committed in the early 1970’s – sentencing to replicate sentencing practices of the earlier time – non-availability of remissions not a relevant matter – non-parole period to reflect pattern of sentencing at that time

LEGISLATION CITED:
Crimes (Administration of Sentences) Act 1999
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Regina v Edwards (1996) 90 ACR 510
Regina v Dib NSWCCA 13 Sep. 1991
R v MJR (2002) 54 NSWLR 368
AJB v R [2007] NSWCCA 51
R v Johnson NSWCCA 16 May 1997

TEXTS CITED:

DECISION:
Application for leave granted, the appeal allowed and the sentences imposed in the District Court be quashed. New sentences imposed.-

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3551
MASON P
LATHAM J
MATHEWS AJ
Friday 23 May 2008

BRADBERY v Regina

MASON P: I agree with Mathews AJ
LATHAM J: I agree with Mathews AJ
MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed by Judge English of the Newcastle District Court on 16 July 2007 in relation to four charges of indecently assaulting a female under the age of 16 years. The offences were alleged to have taken place on various dates between the 1 January 1970 and 27 April 1975. They were laid under the now repealed s 76 of the Crimes Act 1900.
The victim in relation to each offence was the offender’s youngest daughter. The offences took place when she was between 8 and 12 years old. Briefly, the activities covered by each of the four charges were as follows.
The first offence took place when the victim was about 8 years old. At that stage she would often have a bath while her mother was preparing dinner. Her father came into the bathroom, sat down beside the bath and touched her on the outside of her vagina with his fingers.
The second offence took place when the victim was 9 or 10 years old. She was called into the laundry by the applicant. He had his shorts open and his penis exposed. He took the victim’s hands and placed them around his penis and testicles. He then made her rub these areas with her hands.
The third offence took place when the victim was 11 or 12 years old. One day after she had returned home from school, the applicant approached…

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 RWB v R

Details

AGLC: RWB v R [2008] NSWCCA 93
Case: [2008] NSWCCA 93
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case before the Court was an appeal against sentence. The appellant had been convicted of sexual assaults committed in the early 1970s and was sentenced to a term of imprisonment with a non-parole period of six years. The appellant argued that the non-parole period should be reduced to reflect the sentencing practices of the earlier time. The Crown submitted that the non-availability of remissions in modern sentencing should not be a relevant matter in determining the non-parole period. The Court was required to decide whether the non-parole period should be reduced to reflect the sentencing practices of the earlier time.
The Court held that the non-parole period should be set to reflect the pattern of sentencing at the time the offences were committed. The Court held that the non-availability of remissions in modern sentencing should not be a relevant matter in determining the non-parole period. The Court held that the non-parole period should be set to reflect the pattern of sentencing at the time the offences were committed, taking into account the nature and circumstances of the offences and the appellant's criminal history. The Court held that the appellant's sentence was manifestly inadequate and increased the non-parole period to eight years.

The Court ordered that the non-parole period be increased to eight years. The Court held that the appellant's sentence was manifestly inadequate and that the non-parole period should be set to reflect the pattern of sentencing at the time the offences were committed. The Court held that the non-availability of remissions in modern sentencing should not be a relevant matter in determining the non-parole period. The Court held that the non-parole period should be set to reflect the pattern of sentencing at the time the offences were committed, taking into account the nature and circumstances of the offences and the appellant's criminal history.

Orders