XY v R [2007] NSWCCA 72

New South Wales Court of Criminal Appeal

CITATION: XY v R [2007] NSWCCA 72

HEARING DATE(S): 16 February 2002

JUDGMENT DATE: 23 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 63; Howie J at 65

DECISION: 1. Appeal allowed; 2. Resentence the applicant as follows:; Count 1: fixed term of 4 years imprisonment commencing on 3 March 2006 and expiring on 2 March 2010; Count 2: a non-parole period of 4 1/2 years commencing on 3 March 2006 and expiring on 2 September 2010 with a parole period of 3 years expiring on 2 September 2013; Count 3: fixed term of six months commencing on 3 September 2005 and expiring on 2 March 2006; Count 4: fixed term of six months commencing on 3 December 2005 and expiring on 2 June 2006; Accordingly, the total term without parole will be a period of 5 years with a further period of 3 years on parole.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - sexual assault of child - digital penetration - assault occasioning actual bodily harm - young offender - whether intoxication and prior good character were mitigating factors - whether offender was contrite - whether offence was close to being the worse case of its kind - whether offence was mid-range - whether there was error in determining non-parole period

LEGISLATION CITED: Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999

Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1994) 72 A Crim R 561 R v Dunn unreported, NSWCCA, 15 April 1992 R v Gordon (1994) 71 A Crim R 459 R v Kotevski unreported, NSWCCA, 3 April 1998 CASES CITED: R v Marshall [2007] NSWCCA 24 R v Olsen [2005] NSWCCA 243 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Slack [2004] NSWCCA 128 R v Thomas (1993) 65 A Crim R 269 R v Wicks [2005] NSWCCA 409