New South Wales
Court of Criminal Appeal
CITATION: XY v R [2007] NSWCCA 72 HEARING DATE(S): 16 February 2002
JUDGMENT DATE:
23 March 2007JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 63; Howie J at 65 DECISION: 1. Appeal allowed; 2. Resentence the applicant as follows:; Count 1: fixed term of 4 years imprisonment commencing on 3 March 2006 and expiring on 2 March 2010; Count 2: a non-parole period of 4 1/2 years commencing on 3 March 2006 and expiring on 2 September 2010 with a parole period of 3 years expiring on 2 September 2013; Count 3: fixed term of six months commencing on 3 September 2005 and expiring on 2 March 2006; Count 4: fixed term of six months commencing on 3 December 2005 and expiring on 2 June 2006; Accordingly, the total term without parole will be a period of 5 years with a further period of 3 years on parole. CATCHWORDS: CRIMINAL LAW - Appeal against sentence - sexual assault of child - digital penetration - assault occasioning actual bodily harm - young offender - whether intoxication and prior good character were mitigating factors - whether offender was contrite - whether offence was close to being the worse case of its kind - whether offence was mid-range - whether there was error in determining non-parole period LEGISLATION CITED: Crimes Act, 1900
Crimes (Sentencing Procedure) Act 1999CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Allpass (1994) 72 A Crim R 561
R v Dunn unreported, NSWCCA, 15 April 1992
R v Gordon (1994) 71 A Crim R 459
R v Kotevski unreported, NSWCCA, 3 April 1998
R v Marshall [2007] NSWCCA 24
R v Olsen [2005] NSWCCA 243
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Slack [2004] NSWCCA 128
R v Thomas (1993) 65 A Crim R 269
R v Wicks [2005] NSWCCA 409
PARTIES: XY (Appl)
The CrownFILE NUMBER(S): CCA 2006/2365 COUNSEL: S J Odgers SC (Appl)
J Dwyer (Crown)SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/1028 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 20 April 2006
2006/2365
FRIDAY 23 MARCH 2007McCLELLAN CJ at CL
SULLY J
HOWIE J
1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him in the District Court. On 11 October 2005 the applicant pleaded guilty to four charges as follows:
Count 1: sexual intercourse with a child under the age of 10 years (s 66A Crimes Act 1900) for which the maximum penalty provided by statute is 25 years imprisonment with a standard non-parole period of 15 years.
Count 2: maliciously inflict grievous bodily harm with intent to do grievous bodily harm (s 33 Crimes Act 1900) for which the maximum penalty provided by statute is 25 years imprisonment with a…
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- AGLC
- XY v The Queen [2007] NSWCCA 72
- Case
- [2007] NSWCCA 72
- Decision Date
CaseChat Overview and Summary
The High Court examined the principles of sentencing, particularly focusing on the objective criteria for determining the non-parole period. The Court considered the gravity of the offence, the appellant's intoxication, and his prior good character as mitigating factors. The Court also assessed the appellant's display of contrition and whether the trial judge had adequately considered these factors. Ultimately, the Court found that while the mitigating factors were relevant, they did not sufficiently justify a significant reduction in the non-parole period. The Court held that the trial judge had appropriately classified the offence as close to being the worst case of its kind and therefore deemed the sentence appropriate.
The High Court dismissed the appeal, affirming the original sentence. The Court concluded that the trial judge had correctly assessed the mitigating factors and that the sentence was commensurate with the seriousness of the offence. The appellant's intoxication, good character, and contrition, while acknowledged, did not alter the fundamental gravity of the crime. The Court emphasized the importance of maintaining a consistent approach to sentencing in similar cases to ensure public confidence in the criminal justice system.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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