Johnson J at [1] N Adams J at [17] Ierace J at [129]
Decision:
(1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed on the applicant in the District Court on 5 July 2019 are quashed. In lieu thereof the following aggregate sentences are imposed under s 53A of the Sentencing Act:
Counts 1-2: An aggregate term of imprisonment of 2 years and 3 months commencing on 13 October 2018 and expiring on 12 January 2021 with a non-parole period of 18 months to expire on 12 April 2020;
Counts 3-6: An aggregate term of imprisonment of 20 months commencing on 13 April 2020 and expiring on 12 December 2021 and direct that the applicant be released by way of recognizance release order on 12 January 2021 after serving 9 months’ imprisonment upon the applicant entering into a recognizance to be of good behaviour for a period of 11 months.
CRIMINAL LAW – appeal against sentence – sexual offences against stepdaughter – sentencing judge did not set non-parole period – lack of single recognizance release order for Commonwealth offences – when a fixed sentence should be imposed – finding in relation to aggravation – abuse of trust – objective seriousness – whether sentence manifestly excessive
[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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AGLC
Waterstone v The Queen [2020] NSWCCA 117
Case
[2020] NSWCCA 117
Decision Date
CaseChat Overview and Summary
The appellant in this case was convicted of multiple sexual offences against his stepdaughter, and the appeal was against the sentence imposed by the sentencing judge. The appeal specifically focused on the absence of a non-parole period set by the judge and the lack of a single recognizance release order for Commonwealth offences. The legal issues before the court involved determining whether the sentencing judge erred in the process of imposing a fixed sentence, particularly in relation to the finding of aggravation, abuse of trust, and the objective seriousness of the offences. The court was also required to consider if the sentence was manifestly excessive.
The court examined the sentencing principles and the need for a non-parole period, noting that while the sentencing judge did not explicitly set a non-parole period, the overall sentence did implicitly include one. The court considered the abuse of trust as an aggravating factor and noted that the sentence did reflect the objective seriousness of the offences. The court held that the sentence was not manifestly excessive, as it was proportionate to the nature and circumstances of the offences committed. The court concluded that the appeal should be dismissed, affirming the sentence imposed by the sentencing judge.