McClellan CJ at CL at [1] Price J at [2] Button J at [3]
Decision:
(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:
CRIMINAL LAW - sentence appeal - sexual intercourse without consent - no failure to identify and assess objective seriousness - no failure to identify and assess subjective features - whether intoxication relevant to sentence - sentence not manifestly excessive
Darryl Kingsley Stewart (applicant) Regina (respondent)
Representation
- Counsel:
Counsel: R Burgess (applicant) T Smith (respondent)
- Solicitors:
Solicitors: B Sandland (applicant) Solicitor for Public Prosecutions (respondent)
File number(s):
2010/386822
Decision Under Appeal
- Court / Tribunal:
District Court
- Before:
Black DCJ
- Date of Decision:
15 December 2011
- Citation:
- Court File Number(s)
2010/386822
Publication Restriction:
JUDGMENT
McClellan CJ at CL: I agree with Button J.
Price J: I agree with Button J.
Button J:
Introduction
On 15 December 2011 in the District Court at Lismore, Judge Black QC sentenced the applicant for one count of having sexual intercourse with the victim without her consent and knowing that she was not consenting to that sexual intercourse. The count was brought pursuant to s 61I of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 14 years, and there is a standard non-parole period attaching to the offence of imprisonment for 7 years.
His Honour sentenced the applicant to a head sentence of imprisonment for 4 years 6 months, with a non-parole period of 2 years 8 months. Clearly enough, special circumstances were found that permitted variation of the statutory ratio. If that had not occurred, the non-parole period would have been 3 years 4 months 2 weeks.
The applicant seeks leave to appeal to this Court from that sentence.
Objective features
This summary is based on the findings in the remarks on sentence, a document containing agreed facts that was tendered in proceedings on sentence, and a victim impact statement that was tendered by the prosecution.
As at November 2010, the applicant and the victim had been in a relationship for some years. The relationship had been somewhat disrupted, and had not been…
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
AGLC
Stewart v R [2012] NSWCCA 183
Case
[2012] NSWCCA 183
Decision Date
CaseChat Overview and Summary
In the case of Stewart v R, the appellant, Mr. Stewart, was convicted of engaging in sexual intercourse without the consent of the victim. He appealed against the sentence imposed by the trial judge, contending that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive and failed to adequately consider relevant factors, including the objective seriousness of the offence and the appellant's intoxication at the time of the offence.
The court considered whether the trial judge had failed to identify and assess the objective seriousness of the offence, as well as the subjective features of the appellant. The court found that the trial judge had adequately assessed both the objective seriousness of the offence and the subjective features of the appellant. The court also examined whether intoxication was relevant to the sentence and whether the trial judge had failed to consider it. The court concluded that the trial judge had considered the appellant's intoxication but found it to be an insufficient mitigating factor. The court held that the sentence imposed by the trial judge was not manifestly excessive.
The High Court of Australia dismissed the appeal, affirming the conviction and sentence of the trial court. The court held that the trial judge had not failed to identify and assess the objective seriousness of the offence or the subjective features of the appellant, and that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the conviction and sentence of the trial court were upheld.