SW v The Queen - [2019] NSWCCA 194

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: SW v R [2019] NSWCCA 194
Hearing dates: 19 July 2019
Date of orders: 19 August 2019
Decision date: 19 August 2019
Before: Bathurst CJ at [1]
Bell P at [2]
Davies J at [3]
Decision:
(1) Extend time for leave to appeal to 25 March 2019.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords: CRIME - appeals - appeal against sentence – whether sentence manifestly excessive - applicant pleaded guilty to a number of sexual offences - three further offences taken into account on a Form 1 - offending occurred when the applicant was 15 and 16 years of age - complainant was the applicant’s stepbrother aged 10 and 11 years at the time - approximately 16 year delay in prosecuting the offences - whether the sentencing judge gave sufficient weight to the offender's youth and the delay - where the offending was significant - where the offences charged were representative offences - where the offending involved threats and a degree of coercion - consideration of how the offender would have been sentenced but for the delay - sentence not unreasonable or plainly unjust - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 61J, 61M, 61L
Crimes (Sentencing Procedure) Act 1999 (NSW) s 25AA
Cases Cited: Hughes v R [2018] NSWCCA 2
R v Todd [1982] 2 NSWLR 517
RL v R [2015] NSWCCA 106
Texts Cited: Nil
Category: Principal judgment
Parties: SW (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Singh (Applicant)
B Baker (Respondent)
Solicitors:
Sydney Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/118923
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

10 September 2018

Before:

Haesler SC DCJ

File Number(s):

2017/118923

Judgment

BATHURST CJ: I agree with the orders proposed by Davies J and with his Honour’s reasons.
BELL P: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Wollongong Local Court to the following offences:

Sequences 19, 26 and 28: Aggravated sexual intercourse without consent with a person under the age of 16 years contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years’ imprisonment.

Sequences 20, 24 and 25: Aggravated indecent assault of a person under the age of 16 years contrary to s 61M(1) (since repealed) of the Crimes Act. The maximum penalty for this offence was seven years’ imprisonment.

Sequence 30: Assault with act of indecency contrary to s 61L of the Crimes Act (since repealed). The maximum penalty for this offence was five years’ imprisonment.

In relation to sequence 19 the applicant asked for a further offence of aggravated indecent assault of a person under the age of 16 years to be taken into account on a Form 1. In relation to sequence 26 the applicant asked that two further offences of aggravated indecent…

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 The Queen

Details

AGLC: SW v The Queen [2019] NSWCCA 194
Case: [2019] NSWCCA 194
Decision Date: 19 August 2019

CaseChat Overview and Summary

The case of SW v The Queen involved an appellant who appealed against a sentence imposed by the sentencing judge. The appellant had pleaded guilty to several sexual offences and three further offences were taken into account on a Form 1. The offending occurred when the appellant was aged 15 and 16, and the complainant was the appellant's stepbrother, who was 10 and 11 years old at the time. There was a significant delay of approximately 16 years in prosecuting the offences. The appeal raised questions regarding whether the sentence was manifestly excessive, and whether the sentencing judge had given sufficient weight to the offender's youth and the delay in prosecution.

The court was required to consider whether the sentence was unreasonable or plainly unjust. The legal issues involved the weight that should have been given to the appellant's youth and the delay in prosecution, as well as the severity of the offences charged. The court needed to consider how the offender would have been sentenced if the delay had not occurred and whether the sentence imposed was disproportionate to the offending. The court also needed to weigh the seriousness of the offences against the appellant's youth and the delay in prosecution.

The court found that the sentence was not unreasonable or plainly unjust. The court acknowledged that the offences were serious, involving threats and a degree of coercion, but noted that the sentencing judge had given appropriate weight to the appellant's youth and the delay in prosecution. The court held that the sentence imposed was proportionate to the offending and that there was no basis to conclude that the sentence was manifestly excessive. The appeal was dismissed.

There were no further orders made by the court. The appeal against sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld.

Orders