XY v The Queen - [2007] NSWCCA 72

New South Wales
Court of Criminal Appeal

CITATION: XY v R [2007] NSWCCA 72

HEARING DATE(S): 16 February 2002

JUDGMENT DATE:
23 March 2007

JUDGMENT 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 1999

CASES 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 Crown

FILE 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

McCLELLAN CJ at CL
SULLY J
HOWIE J
FRIDAY 23 MARCH 2007

XY v R

Judgment

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…

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 XY v The Queen

Details

AGLC: XY v The Queen [2007] NSWCCA 72
Case: [2007] NSWCCA 72
Decision Date: 23 March 2007

CaseChat Overview and Summary

In the case, XY, the appellant, sought to appeal his sentence for sexual assault of a child, specifically involving digital penetration and assault occasioning actual bodily harm. The case was heard in the High Court of Australia. The appellant argued that the trial judge had erred in determining the non-parole period for his sentence. The appellant claimed that the sentence was excessively harsh, given his intoxication at the time of the offence, his prior good character, and his display of contrition. The central issue was whether these factors warranted a reduced sentence and whether the offence was appropriately classified as mid-range or close to being the worst case of its kind.

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