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Sausa v R

Sausa v R

Case [2023] NSWCCA 95 24 April 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sausa v R [2023] NSWCCA 95
Hearing dates: 13 February 2023
Date of orders: 24 April 2023
Decision date: 24 April 2023
Before: Wilson J at [1];
N Adams J at [2];
Cavanagh J at [43].
Decision:
(1) Leave to appeal is granted.
(2) The sentence imposed by Judge Syme on 22 October 2021 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 6 years imprisonment commencing on 6 June 2020 and expiring on 5 June 2026 with a non-parole period of 4 years expiring on 5 June 2024.

Catchwords:
CRIMINAL LAW – sentence appeal – where sentencing judge made finding of special circumstances – statutory ratio not adjusted – error established – application for leave to appeal granted – statutory ratio varied

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(2), 66C(4),
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2B) 53A

Cases Cited:
Caristo v R [2011] NSWCCA 7
CM v R [2013] NSWCCA 341
CM v R [2020] NSWCCA 136
Collier v R [2012] NSWCCA 213
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Leslie v R [2009] NSWCCA 203
MD v R [2015] NSWCCA 37
R v Little [2013] NSWCCA 288
Singh v R [2020] NSWCCA 353
Sutton v R (2004) 41 MVR 40; [2004] NSWCCA 225

Category: Principal judgment
Parties: Roberto Sausa (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr S Howell (Applicant)
Ms S Traynor (Respondent)
Solicitors:
Criminal Defence Lawyers Australia (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2020/168943
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 October 2021

Before:

Syme DCJ

File Number(s):

2020/168943

WILSON J: I agree with N Adams J for the reasons provided by her Honour.
N ADAMS J: By notice of appeal filed 12 November 2021, the applicant, Roberto Sausa, seeks leave to appeal against the aggregate sentence imposed on him by Judge Syme on 22 October 2021 in relation to sexual offences committed against the teenage daughter of his then partner in 2016, 2017 and 2018.
The applicant was sentenced in relation to the following offences:

Sequence 2: Indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (maximum penalty 10 years imprisonment, standard non-parole period 8 years).
Sequence 11: Sexual intercourse with a child between 14 and 16, contrary to s 66C(4) of the Crimes Act 1900 (maximum penalty 12 years imprisonment, standard non-parole period 5 years).
Seqence 10: Sexual intercourse with a child between 14 and 16, contrary to s 66C(4) of the Crimes Act 1900 (maximum penalty 12 years imprisonment, standard non-parole period 5 years).
Form 1: A further offence of an act of indecency contrary to s 61M(2) of the Crimes Act 1900 was dealt with by way of the “Form 1” procedure, pursuant to s 32…

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 Sausa v R

Details

AGLC: Sausa v R [2023] NSWCCA 95
Case: [2023] NSWCCA 95
Decision Date: 24 April 2023

CaseChat Overview and Summary

The appellant, Sausa, appealed against the sentence imposed on him by the sentencing judge. The court had to decide whether the sentence was manifestly inadequate and whether the statutory ratio was appropriately adjusted by the sentencing judge. The court held that the finding of special circumstances by the sentencing judge was correct, but the statutory ratio was not adjusted. This was an error and the appeal was allowed. The application for leave to appeal was granted and the statutory ratio was varied.

The court considered the evidence presented in the case and found that the sentencing judge had correctly identified the special circumstances. However, the court also found that the statutory ratio was not adjusted by the sentencing judge, which was an error. The court held that the error was significant and established a ground for appeal. The court then considered the application for leave to appeal and granted it, as the error was significant enough to warrant an appeal. The statutory ratio was varied to reflect the special circumstances identified by the sentencing judge. The final orders of the court included the variation of the statutory ratio and the granting of leave to appeal.

Orders