Basten AJA at [1]; Davies J at [57]; McNaughton J at [58]
Decision:
(1) Grant the applicant leave to appeal against the sentence imposed by the District Court on 12 August 2021.
(2) Allow the appeal and set aside the sentence imposed in the District Court.
(3) Sentence the applicant to a period of imprisonment involving a non-parole period of 3 years and 3 months commencing on 7 April 2020 with a balance of term of 2 years.
(4) Note that the applicant is first eligible for release on 6 July 2023.
Catchwords:
CRIME – sentencing – child sex offences – persistent sexual abuse of a child – Crimes Act 1900 (NSW), s 66EA – offences in NSW and Qld – sexual touching and intercourse
SENTENCING – appeal against sentence – objective seriousness – nine-year old victim – 40-year-old offender – victim was offender’s stepdaughter – five ingredient offences occurred over a week – serious breach of trust – sentencing judge found offending to be below mid-range, but above low range – no error
SENTENCING – re-sentencing on appeal –reasonable prospects of rehabilitation – general deterrence less relevant with intellectually unsophisticated offender – discount assessed by sentencing judge applied
[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
Towse v R [2022] NSWCCA 252
Case
[2022] NSWCCA 252
Decision Date
CaseChat Overview and Summary
Towse appealed against his sentence for offences committed against his nine-year-old stepdaughter. The crimes included multiple instances of sexual touching and intercourse, committed over a week, and were prosecuted under the Crimes Act 1900 (NSW). The sentencing judge acknowledged the serious breach of trust involved in the crimes but determined that the objective seriousness placed the offending below the mid-range, but above the low range. The court was required to decide whether the sentence imposed was manifestly excessive, considering the 35% discount for early plea and assistance to authorities, and to compare it to similar cases.
The court examined comparable cases, including Burr v R, Eacott v R, Mills v R, and GP v R, to assess whether the starting point for sentencing was beyond the usual range. The court considered that Towse's intellectual capabilities and the likelihood of rehabilitation might affect the relevance of general deterrence. The court found that the sentencing judge had properly assessed the discount and the overall severity of the crimes, taking into account all relevant factors.
The appeal was dismissed as the court found no error in the sentencing judge's approach. The sentence imposed was deemed appropriate, reflecting the gravity of the offences while considering the offender's characteristics and the circumstances of the case. The court concluded that the sentence was not manifestly excessive, and the discount applied was reasonable.
The court made no orders altering the sentence. The appeal was dismissed, and the original sentence stood affirmed.