Macfarlan JA at [1] Latham J at [126] R A Hulme J at [130]
Decision:
(1) Application for extension of time to appeal against conviction refused. (2) Application for extension of time to appeal against sentence granted. (3) Application for leave to appeal against sentence granted. (4) Appeal against sentence allowed in part. (5) In relation to the sentences imposed in the District Court on 10 March 2011 (and corrected on 15 July 2011): (a) Quash the sentences imposed in respect of Counts 13 and 15 and in lieu impose sentences comprising a non-parole period of 12 years 6 months to commence 12 November 2015 and expire 11 May 2028 and a balance of the term of the sentence of 5 years 6 months to expire 11 May 2033. (b) The sentences imposed are otherwise confirmed. (c) Accordingly, the applicant's sentences will expire on 11 November 2033, with the earliest date that he will be eligible for parole being 11 May 2028. (6) Appeal against sentence otherwise dismissed.
Catchwords:
CRIMINAL LAW - conviction appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - applicant claimed intercourse was consensual - Notice of Intention to Appeal and Notice of Appeal filed long out of time - s 10(1)(a) Criminal Appeal Act 1912, r 3A Criminal Appeal Rules - whether sufficient prospects of success to warrant an extension of time - extension refused
CRIMINAL LAW - sentence appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - sentencing judge determined that offences fell "well above the mid-range and up towards the high range of objective seriousness" - applicant sentenced to total term of imprisonment of 22 years with 17 years 6 months aggregate non-parole period - whether sentencing judge erred in determination of objective seriousness - whether sentencing judge erred in assessing totality and in accumulating sentences by failing to find sexual assaults formed one episode of criminality - whether sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences - whether sentence manifestly excessive - aggregate non-parole period reduced by 12 months - sentence otherwise confirmed
[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.
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Details
AGLC
Simon v R [2013] NSWCCA 328
Case
[2013] NSWCCA 328
Decision Date
CaseChat Overview and Summary
The applicant, Simon, appealed both his conviction and sentence in relation to charges of sexual assault and other offences. Simon had followed the complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over several hours. He claimed the sexual intercourse was consensual. The appeal was considered by the court of criminal appeal, which needed to determine whether the applicant's Notice of Intention to Appeal and Notice of Appeal, filed significantly out of time, could be extended under s 10(1)(a) of the Criminal Appeal Act 1912 and r 3A of the Criminal Appeal Rules. The court also needed to consider the sentencing appeal, including whether the sentencing judge erred in determining the objective seriousness of the offences, in assessing the totality of the sentence, and in accumulating sentences by failing to find the sexual assaults formed one episode of criminality. Additionally, the court needed to determine if the sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences, and whether the sentence was manifestly excessive.
The court held that the applicant had not shown sufficient prospects of success to warrant an extension of time for filing the appeal against conviction, and the appeal was dismissed. In relation to the sentence, the court found that the sentencing judge correctly assessed the objective seriousness of the offences, which fell well above the mid-range and up towards the high range. The court did, however, reduce the aggregate non-parole period by 12 months and otherwise confirmed the sentence.
The final orders of the court were that the appeal against conviction was dismissed, and the sentence was confirmed with a reduction in the aggregate non-parole period by 12 months. This means that Simon's conviction and sentence, with the specified modification, stand as originally determined by the lower court.