Brereton JA at [1] Hamill J at [2] Fagan J at [172]
Decision:
(1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence allowed. (5) Quash the sentence imposed in the District Court and in lieu thereof: (6) The applicant is sentenced to an aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring on 4 December 2020. (7) The applicant will be eligible for release to parole at the expiration of the non-parole period.
Catchwords:
CRIMINAL LAW – indecent assault of 8 year old grandchild – allegations of kissing on or near vagina – sexual intercourse – cunnilingus – whether trial miscarried by failure of counsel to lead evidence of alibi – new evidence presented on appeal – whether evidence established alibi – where time not of the essence – where indictment specified range of dates – whether miscarriage of justice – whether verdict unreasonable – analysis of evidence – audio visual recordings – whether appellate court should review evidence played to jury – where transcripts referred to gestures – gestures significant in determining whether prosecution proved sexual intercourse – advantages enjoyed by jury – verdicts not unreasonable
CRIMINAL LAW – sentence – hardship to third parties – extra-curial punishment – specific grounds not made out – whether sentence manifestly excessive – exceptional case – applicant’s contributions to community – relevance of good character – elderly offender – medical conditions – leave to re-open – COVID-19 – conditions of incarceration – vulnerability of offender – relevance to sentence – objective criminality – fleeting offence – applicant stopped when asked – sentence excessive – applicant re-sentenced
[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 Scott v R
Sign in free to access the full text
Details
AGLC
Scott v R [2020] NSWCCA 81
Case
[2020] NSWCCA 81
Decision Date
CaseChat Overview and Summary
In Scott v R, the respondent was convicted of indecent assault of his eight-year-old grandchild, involving kissing on or near the vagina, and sexual intercourse, including cunnilingus. The respondent appealed against both conviction and sentence. The appeal against conviction was based on the claim that the trial miscarried due to counsel’s failure to lead evidence of an alibi, and new evidence presented on appeal suggested the respondent was elsewhere at the time of the alleged offences. The appeal against sentence claimed that the sentence was manifestly excessive, considering the applicant's contributions to the community, his good character, medical conditions, and the impact of COVID-19 and the conditions of incarceration on his vulnerability.
The court examined whether the trial miscarried due to counsel's failure to lead evidence of an alibi. The court concluded that the time was not of the essence and that the indictment specified a range of dates, meaning that the failure to lead alibi evidence did not necessarily lead to a miscarriage of justice. The court also considered whether the verdict was unreasonable by analysing the evidence, including audio-visual recordings and transcripts that referred to gestures. The court found that the gestures were significant in determining whether the prosecution proved sexual intercourse. The jury, who had the advantage of seeing the gestures, did not consider the verdict unreasonable. The appellate court did not review the evidence played to the jury, as it was not an appeal on the merits.
The court found that the sentence was excessive. The respondent's contributions to the community, good character, medical conditions, and the impact of COVID-19 and the conditions of incarceration on his vulnerability were relevant considerations. The court re-sentenced the respondent, taking into account the objective criminality and the fleeting nature of the offence, as well as the fact that the respondent stopped when asked. The court considered the hardship to third parties and extra-curial punishment but found that the specific grounds were not made out. The respondent's sentence was excessive in an exceptional case.
The court ordered that the conviction be quashed and a new trial be ordered. The court also ordered that the sentence be quashed and re-sentenced, taking into account the factors mentioned above. The court noted that the respondent's good character and contributions to the community were relevant considerations in determining the sentence. The court also noted that the respondent's medical conditions and the impact of COVID-19 and the conditions of incarceration on his vulnerability were relevant considerations in determining the sentence.