District Court
New South Wales
Medium Neutral Citation: Shane Kovacs v R [2016] NSWDC 19 Hearing dates: 18 February 2016 Date of orders: 04 March 2016 Decision date: 04 March 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: The appeal against severity is allowed.
I set aside the sentences imposed by the Chief Magistrate.
In lieu thereof I impose an aggregate sentence of 1 year and 8 months imprisonment with a non parole period of 10 months to date from 4 March 2016.
I direct that the offender is to be released to parole on 3 January 2017.Catchwords: CRIMINAL LAW – appeal from decision of magistrate – severity – sexual assault – child aged between 14 and 16 – indictable offences – Table 1 offences dealt with summarily
SENTENCE – aggravating factors – mitigating factors – psychological condition – custodial sentence – concurrent sentence – accumulation – totality principle – finding of special circumstancesLegislation Cited: Crimes Act 1900 s 66C(3)
Crimes (Sentencing Procedure) Act 1999 ss 5, 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(2)(h), 21A(3)(i), 21A(2)(k), 22, 53A
Crimes (appeal and Review) Act 2001 ss 11, 17, 20(2)Cases Cited: R v JVP NSWCCA unreported 6 November 1995
R v Sea NSWCCA unreported 13 August 1990
R v Attard [2004] NSWCCA 376
Fina’i v R [2006] NSWCCA 134
Parkes v R [2013] NSWCCA 247
R v BJW (2000) 112 A Crim R 1
R v Fisher (1989) 40 A Crim R 442
Muldrock v R (2011) 244 CLR 120
Palijan v R [2010] NSWCCA 142
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48
R v Lawrence [2005] NSWCCA 91
R v Thompson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1Category: Principal judgment Parties: Shane Kovacs (Appellant)
Regina (Respondent)Representation: Solicitors:
Ms R Chalmers (Appellant)
C Hyland Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/00065410
Judgment
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Shane Kovacs (the appellant) appeals against the severity of the sentence imposed on him by the Chief Magistrate Judge Henson on 8 December 2015 at the Downing Centre Local Court.
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The appellant had pleaded guilty of 3 counts of sexual intercourse with a person aged between 14 and 16 years contrary to section 66C(3) Crimes Act 1900. The offences were committed in September and October 2014 when the victim was 14 years of age and each involved penile vaginal intercourse. The maximum penalty for each count was 2 years imprisonment when dealt with summarily. On indictment the maximum penalty was 10 years imprisonment.
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The Chief Magistrate imposed the following sentences of imprisonment:
Count 1 8 months with a non-parole period of 4 months to date from 8 December 2015;
Count 2 10 months with a non-parole period of 6 months to date from 7 April 2016; and
Count 3 14 months with a non-parole period of 8 months to date from 7 October 2016.
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The effective term of imprisonment imposed was one of 2 years (less one…
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- AGLC
- Shane Kovacs v The Queen [2016] NSWDC 19
- Case
- [2016] NSWDC 19
- Decision Date
CaseChat Overview and Summary
The court had to determine if the original sentence was appropriate under the totality principle and whether the cumulative effect of the multiple offences warranted a more lenient approach. The appeal hinged on whether the mitigating factors, particularly the appellant’s psychological condition, warranted a reduction in the severity of the sentence. Additionally, the court needed to examine the application of the accumulation principle and whether the concurrent nature of the sentences imposed warranted any adjustment.
The court found that the original sentence was indeed too severe, given the mitigating factors and the principles of sentencing. The psychological condition of the appellant and the nature of the offences warranted a reconsideration of the sentence. The court emphasised the need to balance the severity of the crime with the mitigating circumstances, ultimately concluding that the original sentence did not appropriately account for these factors. The appeal was allowed, and a new sentence was imposed, reducing the overall imprisonment term and setting a non-parole period. The court also directed that the appellant be released on parole on a specific date.
Orders
Orders of the court
The appeal against severity is allowed.
I set aside the sentences imposed by the Chief Magistrate.
In lieu thereof I impose an aggregate sentence of 1 year and 8 months imprisonment with a non parole period of 10 months to date from 4 March 2016.
I direct that the offender is to be released to parole on 3 January 2017.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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