SKA v R; R v SKA - [2009] NSWCCA 186

Appeal Outcome: Referred to an enlarged Full Court (s100/2010), 30 July 2010, [2010]HCATrans 198

New South Wales

Court of Criminal Appeal

CITATION: SKA v R; R v SKA [2009] NSWCCA 186

HEARING DATE(S): 13 May 2009

JUDGMENT DATE:
14 July 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Simpson J at 3

DECISION: (i) Appeal against conviction dismissed; (ii) leave to appeal against sentence granted, appeal against severity of sentence dismissed; (iii) Crown appeal allowed in respect of the sentence imposed in respect of Count 1; (iv) that sentence quashed, in lieu thereof, the appellant be re-sentenced to imprisonment with a non-parole period of 8 years, commencing on 13 March 2009 and expiring on 12 March 2017, and a balance of term of 4 years, expiring on 12 March 2021; (v) the sentence imposed in respect of Counts 2 and 3 be varied so as to commence on 13 March 2009; the non-parole period to expire on 12 March 2011; the balance of term will expire on 12 March 2013; (vi) the sentences imposed in respect of Counts 4 and 5 be varied so as to commence on 28 December 2009; the non-parole period in respect of Count 4 to expire on 27 December 2013; the balance of term to expire on 27 December 2017; the non-parole period in respect of Count 5 to expire on 27 December 2011; the balance of term to expire on 27 December 2013.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – CRIMINAL LAW – appeal against conviction, whether verdict unreasonable or insupportable having regard to the evidence – CRIMINAL LAW – appeal – procedure – evidence given in trial by video pursuant to Evidence (Children) Act 1997 (now Criminal Procedure Act Pt 6) – whether appeal court should view video – court should proceed on transcript of video-recording – CRIMINAL LAW – sentence – appeal against severity of sentence – Crown appeal against manifest inadequacy of sentence – assessment of objective gravity – s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999 – requires assessment of objective gravity of each offence individually – application of R v Way [2004] NSWCCA 131 – failure to have regard to standard non-parole period – sentence so far below the standard non-parole period as to denote error – failure to adequately reflect objective gravity of offence – accumulation – general deterrence – appellant re-sentenced in respect of Count 1 – overall effective sentence increased

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Evidence (Children) Act 1997

CATEGORY: Principal judgment

CASES CITED: Carroll v The Queen [2009] HCA 13
DPP v AZ [2009] NSWCA 51
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: SKA (Applicant/Respondent)
Regina (Respondent/Applicant)

FILE NUMBER(S): CCA 2008/2740

COUNSEL: W…

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.

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Details

Case: [2009] NSWCCA 186
Decision Date: 14 July 2009

CaseChat Overview and Summary

The case of SKA v R; R v SKA involved an appeal by the accused, SKA, against his conviction and sentence. The appellant was convicted of various sexual offences against minors and was sentenced to imprisonment. The Crown appealed against the sentence as manifestly inadequate. The issues before the court were whether the verdict was unreasonable or insupportable, whether the appeal court should view the video of the trial, and whether the sentence was manifestly inadequate.

The court found that the evidence against the appellant was compelling and the verdict was not unreasonable or insupportable. Regarding the video evidence, the court held that it should proceed on the transcript of the video-recording rather than view the video itself. Concerning the sentence, the court found that the primary judge had failed to adequately reflect the objective gravity of the offences. The court held that the objective gravity of each offence must be assessed individually, and the standard non-parole period should be considered. The court found that the sentence was so far below the standard non-parole period as to denote an error, and the appellant was re-sentenced.

The appellant's sentence was increased to reflect the objective gravity of the offences. The court noted that the accumulation of offences and the need for general deterrence were important factors in sentencing. The court also noted that the appellant's lack of remorse and the impact of the offences on the victims were relevant considerations. The Crown's appeal was allowed, and the appellant was re-sentenced in respect of Count 1, resulting in an overall effective sentence increase.

Orders