Regina v O [2005] NSWCCA 327

New South Wales Court of Criminal Appeal

CITATION: Regina v O [2005] NSWCCA 327

HEARING DATE(S): 25 August 2005

JUDGMENT DATE: 16 September 2005

JUDGMENT OF: Sully J at 1; Hidden J at 59; Hall J at 63

DECISION: Crown appeal against sentence allowed; Sentences passed in District Court quashed; Sentenced in lieu - see judgment

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED: Reg v Dent 14 March 1991 (unreported)

Regina PARTIES: O

FILE NUMBER(S): CCA 2005/910

P. Miller - Crown COUNSEL: G. Gartelmann - Respondent

Director of Public Prosecutions SOLICITORS: Legal Aid of NSW

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3361

LOWER COURT JUDICIAL OFFICER: Williams DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/910

SULLY J HIDDEN J HALL J

Friday 16 September 2005 REGINA v O Judgment SULLY J:

Non Publication Order. The Court has made the following orders: (1) that there be no publication of the name of the respondent or of any matter that would identify him;

(2) that the respondent be referred to in any record of these proceedings as "O";

(3) that the names of the victims, and any material apt to identify them, or any of them, are not to be published;

(4) that the victims be referred to in any record of these proceedings as, respectively, "KW", "JS" and "TS".

Introduction 1 This is a Crown appeal against sentence. 2 In July 2004 the respondent stood trial by jury in the District Court. There were two separate trials, the first taking place from 19 to 23 July; and the second taking place from 26 to 28 July. 3 In the first trial the respondent faced four charges of serious sexual assault offences. Three charges alleged sexual intercourse with the victim KW, being then a child aged 5 or 6 years. The fourth charge alleged a further act of sexual intercourse with that victim, being then a child aged 8 years. Each such offence contravened section 66A of the Crimes Act 1900 (NSW) and attracted upon conviction a statutory maximum penalty of imprisonment for 20 years. 4 At this first trial the respondent pleaded not guilty to all four charges. He was found guilty on the fourth charge; and the jury was unable to agree upon a verdict in any of the other three matters. 5 At the second trial the respondent was charged with two counts of aggravated indecent assault upon the victim JS. He pleaded not guilty to each charge; but the jury found him guilty in each case. 6 It was proposed to present the respondent for re-trial upon the three charges as to which the jury at the first trial had been unable to agree; but in October 2004 the respondent pleaded guilty to one charge of sexual intercourse with KW, being then a child aged 5 or 6 years; and he asked that there be taken into account a charge of aggravated indecent assault upon the victim TS, being then a child aged 6 years. 7 Each of the charges of aggravated indecent assault of which the respondent was convicted, either upon the verdict of a jury at trial or upon a plea of guilty, contravened section 61M(2) of the Crimes Act, and attracted upon conviction a statutory maximum penalty of imprisonment for 10 years. 8 The respondent stood for sentence on 22 April 2005. He was sentenced as follows: