Court of Criminal Appeal
New South Wales
Case Title: ZZ v R Medium Neutral Citation: [2013] NSWCCA 83 Hearing Date(s): 1 August 2012 Decision Date: 19 April 2013 Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Button J at [150]Decision: 1. Leave to appeal granted.
2. Appeal allowed in part.
3. Confirm sentence passed on 17 June 2011 for the offence of obtaining a valuable thing by deception (taking into account the Form 1 offences referrable to this count).
4. Sentences for the offences under s.61I and s.61J Crimes Act 1900 quashed.
5. In their place:
(a) for Count 1, the offence of sexual intercourse without consent contrary to s.61I Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of three years, four months and two weeks commencing on 13 August 2011 and expiring on 26 December 2014, with a balance of term of one year, one month and two weeks commencing on 27 December 2014 and expiring on 9 February 2016,
(b) for Count 2, the offence of aggravated sexual assault contrary to s.61J Crimes Act 1900 (taking into account the s.61J offence on the Form 1), the Applicant is sentenced to imprisonment comprising a non-parole period of four years and eight months commencing on 13 August 2012 and expiring on 12 April 2017, with a balance of term of two years and four months commencing on 13 April 2017 and expiring on 12 August 2019.
6. The earliest date upon which the Applicant will be eligible for release on parole is 12 April 2017.
7. In accordance with s.25C(1) Crimes (High Risk Offenders) Act 2006, the Applicant is advised of the existence of that Act, and its application to the sexual assault offences for which he has been sentenced.
Catchwords: CRIMINAL LAW - sentence - pleas of guilty - sexual intercourse without consent - aggravated sexual intercourse without consent - intoxicated offender - offences committed against then partner following consensual sexual activity - significant injuries to victim - standard non-parole period offences - whether error in approach after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - error demonstrated - whether lesser sentences appropriate under s.6(3) Criminal Appeal Act 1912 - substantial custodial sentences appropriate - significant domestic violence offences - relevance of self-induced intoxication - claim that offences out of character - discount for assistance to authorities - penalties imposed not to be unreasonably disproportionate to nature and circumstances of offences - lesser sentences warranted under s.6(3) - Applicant resentenced Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes (High Risk Offenders) Act 2006Cases Cited: Morrison v R [2009] NSWCCA 211; 197 A Crim R 103
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Coleman (1990) 47 A Crim R 306
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Butler v R [2012] NSWCCA 23
Bourke v R [2010] NSWCCA 22
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- ZZ v R [2013] NSWCCA 83
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- [2013] NSWCCA 83
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CaseChat Overview and Summary
The central legal issues before the court were whether the sentencing judge had erred in applying the standard non-parole period and whether the penalties imposed were disproportionately severe. The court examined whether the sentencing judge had followed the correct legal principles set out by the High Court in Muldrock v The Queen, particularly regarding the impermissible two-stage sentencing approach. The appellant argued that the self-induced intoxication should be considered in determining the appropriate sentence and that the offences were out of character. The Crown opposed any reduction in the sentence, arguing that the penalties were appropriate given the nature of the offences.
The court found that the sentencing judge had indeed erred by applying the standard non-parole period incorrectly, leading to an inappropriate calculation of the custodial terms. The error was significant enough to warrant a resentencing. The court held that, despite the severity of the offences, the penalties imposed were excessively disproportionate. Considering the appellant's guilty plea and assistance to authorities, the court determined that lesser sentences were warranted under section 6(3) of the Criminal Appeal Act 1912. The appellant was therefore resentenced to a term that reflected the errors identified by the court.
The court's final order was that the original sentences be set aside and the appellant be resentenced, taking into account the appropriate legal principles and the mitigating factors presented. The new sentences were to reflect a fair and proportionate response to the nature and circumstances of the offences, while also considering the appellant's cooperation and remorse.
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
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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