Shane Kovacs v The Queen - [2016] NSWDC 19

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 circumstances
Legislation 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 1
Category: 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

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.
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.
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.

The effective term of imprisonment imposed was one of 2 years (less one…

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 Shane Kovacs v The Queen

Details

AGLC: Shane Kovacs v The Queen [2016] NSWDC 19
Case: [2016] NSWDC 19
Decision Date: 04 March 2016

CaseChat Overview and Summary

In this case, Shane Kovacs appeals against the severity of the sentence imposed by the Chief Magistrate, following his conviction for sexual assault involving a child aged between 14 and 16. The appeal was heard in the Supreme Court, where the primary focus was on whether the original sentence was too severe, taking into account the circumstances of the case and the principles of sentencing. The appellant argues that the sentence was disproportionately harsh and that mitigating factors, including his psychological condition, were not sufficiently considered.

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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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 circumstances
Legislation 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 1
Category:	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