SW v R

Case [2013] NSWCCA 255 8 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SW v R [2013] NSWCCA 255
Hearing dates: 16 October 2013
Decision date: 08 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [59]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - Applicant sentenced in November 2010 - claim of Muldrock error - application for extension of time to appeal - Applicant pleaded guilty to one count of having sexual intercourse with a child under the age of ten years contrary to s.66A Crimes Act 1900 - victim aged five to six years - principle of finality - relevant considerations for grant of extension of time - held no Muldrock error demonstrated - challenges to sentencing judge's assessment of objective gravity - whether offence motivated by sexual gratification - no error demonstrated - claim of manifest excess - held sentence not manifestly excessive - no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abdul v R [2013] NSWCCA 247
Essex v R [2013] NSWCCA 11
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v State of Western Australia [2013] HCA 38; 87 ALJR 1035
RR v R [2011] NSWCCA 235; 216 A Crim R 489
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited: ---
Category: Principal judgment
Parties: SW (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr MP King (Applicant)
Ms TL Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/7892
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2010-11-25 00:00:00

Before:

English DCJ

File Number(s):

2009/7892

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes. I also agree with Johnson J that even had Muldrock error been demonstrated, no lesser sentence would be warranted in the case taking into account the further evidence upon which the Applicant relied in this Court.

JOHNSON J: The Applicant, SW, seeks an extension of time to apply for leave to appeal against sentence imposed in the District Court on 25 November 2010. Because the Applicant's offence was committed in a small country town so that publication of his name would tend to identify the victim, a non-publication order was made concerning the names of the Applicant and the victim in the District Court. It is appropriate that the judgment in this Court use initials to describe the Applicant.

The Offence and Sentence

The Applicant pleaded guilty to having sexual intercourse with a child under the age of 10 years contrary to s.66A Crimes Act 1900. The offence was committed between January 2007 and February 2009, when the victim was aged five or six years.

The maximum penalty for an offence…

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 SW v R

Details

AGLC: SW v R [2013] NSWCCA 255
Case: [2013] NSWCCA 255
Decision Date: 08 November 2013

CaseChat Overview and Summary

The applicant, SW, appealed against his sentence following a guilty plea to a charge of having sexual intercourse with a child under the age of ten years. The case was heard in the Court of Criminal Appeal. The applicant sought an extension of time to appeal his sentence, arguing that there had been an error in the way the sentencing judge assessed the objective gravity of the offence, and that the sentence was manifestly excessive. The Crown opposed the application, arguing that the applicant had not demonstrated any error in the sentencing process.

The court considered whether the applicant had demonstrated a Muldrock error, which would warrant an extension of time to appeal. The court found that there was no such error, as the sentencing judge had properly considered the objective gravity of the offence and the relevant factors. The court also considered the applicant's argument that the sentence was manifestly excessive, but found that the sentence was appropriate given the nature and circumstances of the offence. The court held that the applicant had not demonstrated insufficient prospects of success on appeal.

The Court of Criminal Appeal dismissed the applicant's application for an extension of time to appeal. The court held that the sentencing judge had properly considered the relevant factors in determining the sentence, and that the sentence was not manifestly excessive. The court found that the applicant had not demonstrated any error in the sentencing process that would warrant an extension of time to appeal. The court held that the principle of finality must be upheld, and that the applicant's application for an extension of time to appeal was refused.

Orders