XZ v R

Case [2018] NSWCCA 76 30 April 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: XZ v R [2018] NSWCCA 76
Hearing dates: 7 March 2018
Date of orders: 30 April 2018
Decision date: 30 April 2018
Before: Payne JA at [1]
Johnson J at [2]
Campbell J at [79]
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – child sexual assault offences – sexual intercourse with a child under 10 years, then being a person under the authority of the Applicant, contrary to s.66A(2) Crimes Act 1900 – incite a child under 10 years to commit an act of indecency contrary to s.61O(2) Crimes Act 1900 – assault a child under the age of 16 years and at the time of the assault commit an act of indecency contrary to s.61M(2) Crimes Act 1900 – sexual intercourse with a child under 10 years contrary to 66A(1) Crimes Act 1900 – two victims of child sexual assault were the Applicant’s step-granddaughters – additional Form 1 offences with respect to each victim - unrelated firearm offence – possess more than three unregistered firearms including at least one prohibited firearm contrary to s.51D(2) Firearms Act 1996 – aggregate sentence of imprisonment for 15 years and non-parole period of 10 years and six months – claim that sentence manifestly excessive – aggregate sentence reflected totality of Applicant’s serious offending against two young victims over a period of time together with unrelated firearm offence – sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Court Suppression and Non-publication Orders Act 2010
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Weapons Prohibition Act 1998
Cases Cited: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Allen v R [2010] NSWCCA 47
DV v R [2017] NSWCCA 276
Essex v R [2013] NSWCCA 11
Ingham v R [2014] NSWCCA 123
Jones v R [2012] NSWCCA 262
KB v R [2015] NSWCCA 220
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MLP v R [2014] NSWCCA 183
R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159
RJA v R (2008) 185 A Crim R 178; [2008] NSWCCA 89
R v Krstic [2005] NSWCCA 391
R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
Taylor v R [2018] NSWCCA 50
TO v R [2017] NSWCCA 12
Westaway v R [2016] NSWCCA 281
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: XZ (Applicant)
Regina (Crown)
Representation:
Counsel:
Ms S Kluss (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Ross Hill and Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/296213; 2014/332669
Publication restriction: Yes - see [3] of judgment.
Decision…

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 XZ v R

Details

AGLC: XZ v R [2018] NSWCCA 76
Case: [2018] NSWCCA 76
Decision Date: 30 April 2018

CaseChat Overview and Summary

The Applicant was convicted of multiple offences related to child sexual abuse and an unrelated firearm offence. He appealed the sentence of imprisonment for 15 years with a non-parole period of 10 years and six months. The Court of Criminal Appeal was tasked with determining whether the sentence was manifestly excessive. The Applicant argued that the sentence did not adequately reflect the totality of his offending against the two young victims over a period of time and the unrelated firearm offence.

The Court considered the nature and seriousness of the Applicant's offending, the harm caused to the victims, and the need for general deterrence. It noted that the sexual abuse of children was particularly heinous and that the Applicant's position of authority over the victims compounded the gravity of the offending. The Court also considered the unrelated firearm offence, which demonstrated a disregard for the law and the potential for harm to others. However, the Court found that the sentence appropriately reflected the totality of the Applicant's offending and did not constitute a manifestly excessive punishment.

In light of the above, the Court dismissed the appeal and upheld the original sentence. The Court found that the sentence was not manifestly excessive and appropriately balanced the need for punishment, deterrence, and rehabilitation. The Court also noted that the sentence provided some measure of protection to the community by ensuring that the Applicant would be imprisoned for a significant period of time.

Orders