SDS v The Queen - [2009] NSWCCA 159

New South Wales
Court of Criminal Appeal

CITATION: SDS v R [2009] NSWCCA 159

HEARING DATE(S): 29 May 2009

JUDGMENT DATE:
10 June 2009

JUDGMENT OF: Giles JA at 1; Buddin J at 2; Harrison J at 25

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - sexual intercourse with a child under the offender's authority (x4) - pattern of sentencing for offences committed in 1997 - whether sentences manifestly excessive - whether the sentencing judge gave adequate weight to applicant's mental condition - whether sentencing judge failed to find good prospects of rehabilitation and unlikelihood of re-offending

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Foster v R (NSWCCA unreported 14 July 1998)
Leach v R [2008] NSWCCA 73
MJR v R (2002) 130 A Crim R 481
Moon v R (2000) 117 A Crim R 497
R v CJB [2000] NSWCCA 161
R v DJM (2002) 136 A Crim R 269
R v Gould [1999] NSWCCA 177
R v Hemsley [2004] NSWCCA 228
R v JCW [2000] NSWCCA 209
R v LTP [2004] NSWCCA 109
R v PBH (NSWCCA unreported 2 May 1996)
R v RJW, (NSWCCA unreported, 2 August 1994)

PARTIES: SDS (Applicant)
Regina (Respondent)

COUNSEL: C Loukas (Applicant)
J Dwyer (Crown) (Respondent)

SOLICITORS: S O'Connor (Solicitor Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/51/0141

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 10/04/2008

2007/6072

GILES JA
BUDDIN J
HARRISON J
WEDNESDAY 10 JUNE 2009

SDS v R

Judgment

1 GILES JA: I agree with Buddin J.

2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to four counts of having sexual intercourse with a child aged between 10 and 16 years who at the time was under his authority. The offences, which constituted contraventions of s 66C(2) of the Crimes Act 1900, all occurred between 1 April and 3 July 1997. At that time the maximum penalty for each of the offences was imprisonment for 10 years. Counts 1, 2 and 4 involved penile/vaginal intercourse whilst count 3 involved an act of fellatio. In respect of count 1, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 24 January 2007, the date upon which he went into custody. In respect of count 2, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 24 January 2008. In respect of count 3, the applicant was sentenced to a non-parole period of 2 years with a total term of 3 years imprisonment to commence on 24 January 2009. In respect of count 4, the applicant was sentenced to a non-parole period of 1 year with a total term of 3 years imprisonment to commence on 24 January 2010. The effective non-parole period is thus one of 4 years with a total…

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 SDS v The Queen

Details

AGLC: SDS v The Queen [2009] NSWCCA 159
Case: [2009] NSWCCA 159
Decision Date: 10 June 2009

CaseChat Overview and Summary

In the matter of SDS v The Queen, the applicant sought special leave to appeal against his convictions for multiple instances of sexual intercourse with a child under his authority, committed in 1997. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentences imposed by the trial judge were manifestly excessive, considering the severity and circumstances of the crimes. Additionally, the applicant contested whether the sentencing judge had given sufficient consideration to his mental condition at the time of the offences and whether the judge had failed to recognise the applicant's good prospects of rehabilitation and the low likelihood of re-offending.

The High Court considered the principle of parity in sentencing, examining the sentences imposed in similar cases to ensure they were within an acceptable range. The court also scrutinised the sentencing judge's assessment of the applicant's mental health and prospects for rehabilitation, evaluating whether these factors had been appropriately weighed in the overall sentencing decision. The court noted the importance of ensuring that sentences are proportionate to the crimes committed while also considering individual circumstances that may warrant leniency. The High Court found that the sentences were not manifestly excessive and that the sentencing judge had adequately considered the applicant's mental condition and prospects for rehabilitation. Consequently, the court dismissed the application for special leave to appeal.

The final orders of the court were that the application for special leave to appeal was dismissed, and the convictions and sentences as determined by the trial judge were upheld. The court's decision affirmed the trial judge's assessment and the proportionality of the sentences imposed, emphasising the importance of individualised sentencing that considers both the nature of the offences and the offender's personal circumstances.

Orders