Gale v R [2021] NSWCCA 16

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gale v R [2021] NSWCCA 16 Hearing dates: 2 December 2020 Decision date: 19 February 2021 Before: McCallum JA at [1] Johnson J at [2] R A Hulme J at [3] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – manifest excess – taking into account an irrelevant consideration – where arguments on appeal were not made before the sentencing judge – offence of having sexual intercourse with a young person under special care and is aged 17 years or over and under the age of 18 years SENTENCING – relevant factors on sentence – objective seriousness – relevance of victim's age to objective seriousness – relevance of a change in the elements of the offence post-sentencing Legislation Cited: Crimes Act 1900 (NSW), 61H, 73(1)(2) Crimes Amendment (Special Care Offences) Act 2020 (NSW), s 73(3)(c), s 67 Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Cases Cited: Carr v R [2020] NSWCCA 214 MRW v R [2011] NSWCCA 260 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PWB v R [2011] NSWCCA 84; (2011) 216 A Crim R 305 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 R v Howes [2000] VSCA 159; (2000) 116 A Crim R 249 R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 Shannon v R [2006] NSWCCA 39 Category: Principal judgment Parties: Brendan Royce Gale (Applicant) Regina (Respondent) Representation: Counsel: Ms J Paingakulam (Applicant) Mr E Balodis (Crown)