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Scales v The Queen

Scales v The Queen

Case [2017] NSWCCA 293 1 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Scales v R [2017] NSWCCA 293
Hearing dates: 15 May 2017
Date of orders: 01 December 2017
Decision date: 01 December 2017
Before: Hoeben CJ at CL at [1]
Price J at [2]
Lonergan J at [3]
Decision:
(1) Leave to appeal allowed and the appeal against sentence upheld.

(2) Quash the sentence imposed in the District Court on 1 July 2016 in respect of Count 2 on the indictment and in lieu, sentence the Applicant to imprisonment comprising a period of 5 years to commence on 26 November 2016 and expire on 25 November 2021 with a non-parole period of 3 years to commence on 26 November 2016 and expire on 25 November 2019.
(3) The Applicant will become eligible for release on parole upon the expiration of his non-parole period.
Catchwords: CRIMINAL LAW – sentence appeal – child sexual offences – aggravated indecent assault – two counts – objective seriousness – guilty plea – whether sentence reflects objective seriousness and discount for guilty plea – internal inconsistency in sentencing reasons – sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) s 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; 229 A Crim R 337; [2013] HCA 37
Dinsdale v R (2000) 202 CLR 321; 115 A Crim R 558; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; 204 A Crim R 434; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216
Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37
Krivosic v R [2017] NSWCCA 167
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mills v R [2017] NSWCCA 87
R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247
R v Morgan (1993) 70 A Crim R 368
Veen v R (No 2) (1988) 164 CLR 465; 33 A Crim R 230; [1988] HCA 14
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Lindsay Scales – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr D Barrow – Applicant
Mr N Adams – Respondent Crown
Solicitors:
Legal Aid – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/348453
Publication restriction: Non publication of any information or material that may lead to the identification of the complainant or witness: Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

01 July…

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 Scales v The Queen

Details

AGLC: Scales v The Queen [2017] NSWCCA 293
Case: [2017] NSWCCA 293
Decision Date: 01 December 2017

CaseChat Overview and Summary

The appellant, Scales, appealed against his sentence for two counts of aggravated indecent assault against children. The case was heard in the High Court of Australia. Scales' appeal centred on the severity of his sentence, arguing that it did not adequately reflect the objective seriousness of the crimes and the discount for his guilty plea. The central legal issues revolved around whether the sentence imposed was appropriate in light of the objective seriousness of the offences and whether the sentencing reasons exhibited internal inconsistency, leading to a manifestly excessive sentence.

The court examined the sentencing principles, particularly focusing on the objective seriousness of the crimes and the appropriate discount for Scales' guilty plea. The High Court noted the trial judge's recognition of the objective seriousness but highlighted the absence of an explicit consideration of the discount for Scales' early guilty plea. The court also scrutinised the sentencing reasons for any internal inconsistencies that could lead to a manifestly excessive sentence. The court found that while the trial judge recognised the objective seriousness, the absence of an explicit consideration of the discount for Scales' guilty plea was a significant oversight. Furthermore, the sentencing reasons did exhibit internal inconsistency, contributing to a manifestly excessive sentence.

Ultimately, the High Court concluded that the sentence was manifestly excessive due to the internal inconsistency in the sentencing reasons and the failure to explicitly consider the discount for Scales' guilty plea. The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration. The High Court emphasised the importance of adhering to sentencing principles and ensuring consistency in sentencing reasons to avoid manifestly excessive sentences.

Orders