R v Newbigging [2004] NSWCCA 239

New South Wales Court of Criminal Appeal

CITATION : R v Newbigging [2004] NSWCCA 239 HEARING DATE(S) : 14/07/2004 JUDGMENT DATE : 29 July 2004

JUDGMENT OF : Wood CJ at CL; Adams J; Kirby J DECISION : Crown appeal dismissed.

CATCHWORDS : Criminal Practice & Procedure - Crown appeal against sentence - indecent assault - stepdaughter - single count - whether can add to minimal findings of trial Judge on facts. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Savvas v The Queen (1998) 183 CLR 1 R v Rapley [1999] NSWCCA 302 CASES CITED : R v Levi (CCA (NSW), 15.5.97) Griffith v The Queen (1975) 137 CLR 293 R v Holder (1983) 3 NSWLR 245 R v George Michael Morris (CCA (NSW), 10.3.89) PARTIES : Regina (App) Angus McLean Newbigging (Resp) FILE NUMBER(S) : CCA 60145/04 COUNSEL : Dr P Power SC (Crown/Appl) J Young (Resp) SOLICITORS : S Kavanagh (Crown/Appl) S O'Connor (Resp)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0084 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60145/04

WOOD CJ at CL ADAMS J KIRBY J

Thursday 29 July 2004 REGINA v Angus McLean NEWBIGGING Judgment 1 THE COURT: This is an appeal against sentence by the Crown. Having heard argument on 14 July 2004, the Court ordered that the appeal should be dismissed. Reasons were not given at that time. We now provide the reasons for that order. 2 On 3 June 2003, Mr Angus Newbigging ("the respondent") stood trial at the Lismore District Court before Black DCJ and a jury in respect of the following charges: Counts 1 to 4: That, between 25 May 2001 and 11 June 2001, he indecently assaulted a person under the age of 10 years, namely, 8 years. (contrary to s61M(2) Crimes Act 1900) (maximum penalty: 10 years imprisonment) Count 5: That, between 1 and 31 August 2001, he indecently assaulted a person under the age of 10 years, namely, 8 years. (contrary to s61M(2) Crimes Act 1900) 3 Mr Newbigging pleaded not guilty. On 12 June 2003 the jury returned a verdict of not guilty in respect of counts 1 to 4, but guilty of count 5. 4 Mr Newbigging was given bail pending submissions on sentence. The submissions, however, were delayed. On 8 August 2003 his bail was revoked. He remained in custody until sentenced on 26 March 2004. On that day, Black DCJ imposed a sentence of 18 months imprisonment, commencing on the date he entered custody (8 August 2003) and expiring on 7 February 2005. His Honour found special circumstances. He fixed a non parole period of 9 months, commencing from 8 August 2003 and expiring on 7 May 2004. Mr Newbigging was released on that day. He was present throughout the hearing of the appeal. 5 The Crown asserted that the sentence was manifestly inadequate. A Notice of Appeal was served upon the respondent on 6 April 2004, a matter of two weeks or so after the sentence had been imposed.