Regina v Rick Barry Swan [2006] NSWCCA 47

New South Wales Court of Criminal Appeal

CITATION: Regina v Rick Barry Swan [2006] NSWCCA 47

HEARING DATE(S): 20 February 2006

JUDGMENT DATE: 6 March 2006

JUDGMENT OF: Spigelman CJ at 1; Barr J at 69; Howie J at 69

DECISION: 1 Leave to appeal granted.; 2 Appeal against sentence allowed.

CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – General Deterrence & Intellectual Disability – The principle that individuals should not be allowed to take the law into their own hands is accorded less weight where the offender has an intellectual disability. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Personal Deterrence & Sexual Abuse of Defendant by Victim – Where the motivation is retaliation for prior sexual abuse the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate the behaviour is not isolated. - CRIMINAL LAW – SENTENCE APPEAL– Fresh Evidence – New evidence rejected as too narrow too contribute to sentencing exercise - CRIMINAL LAW – SENTENCE APPEAL– Where judges sentence two offenders at the same time, with detailed reasons regarding their respective criminality, appellate courts should be cautious between accepting one defendant had a justifiable sense of grievance.

Crimes Act 1900 (NSW): s95(1), s98 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), s6(3) Crimes (Sentencing Procedure Act) 1999 (NSW): s12, s21A

Briginshaw v Briginshaw (1938) 60 CLR 356 R v Camilleri NSWCCA, unreported, 8 February 1990 R v Craddock [2004] VSC 397 CASES CITED: R v Engert (1995) 84 A Crim R 67 GAS v The Queen (2004) 217 CLR 198 R v Hemsely [2004] NSWCCA 228 R v Olbrich (1999) 199 CLR 270 R v Thomson & Houlton (2000) 49 NSWLR 383