MJL v REGINA [2007] NSWCCA 261

New South Wales Court of Criminal Appeal

CITATION: MJL v REGINA [2007] NSWCCA 261

HEARING DATE(S): 8 May 2007

JUDGMENT DATE: 4 September 2007

JUDGMENT OF: Campbell JA at 1; Hidden J at 2; Smart AJ at 38

DECISION: (1) Leave to appeal is granted and the appeal is allowed ; (2) For counts 1,2,4 and 6, the sentences are confirmed; (3) The sentences for counts 3 and 5 are quashed. In lieu, the applicant is sentenced on each count to a non-parole period of 18 months, commencing 11 May 2008 and expiring 10 November 2009, and a balance of term of 12 months, commencing 11 November 2009 and expiring 10 November 2010 ; (4) For counts 7 and 8, the sentences are confirmed but each is to commence 11 November 2009 and expire on 10 May 2011 ; (5) The sentence on count 9 is quashed. In lieu, the applicant is sentenced to a non-parole period of 2 years, commencing 11 November 2010 and expiring 10 November 2012, and a balance of term of 3 years, commencing 11 November 2012 and expiring 10 November 2015 ; The applicant will be eligible for release on parole on 10 November 2012.

CATCHWORDS: CRIMINAL LAW: Sentence - sexual offences by father against daughter - old offences - relevance of uncharged sexual conduct - special circumstances - practice of setting non-parole periods at the time offences committed - whether sentences manifestly excessive

Crimes (Sentencing Procedure) Act 1999 Parole of Prisoners Act 1966 (NSW) Sentencing Act 1989 LEGISLATION CITED: Criminal Appeal Act 1912 Parole of Prisoners Ordinance 1971 (ACT) Probation and Parole Act 1983 Crimes Act 1900

R v Ellis (1986) 6 NSWLR 603 R v JCW (2000) 112 A Crim R 466 R v MJR (2002) 54 NSWLR 368 AJB v R [2007] NSWCCA 51 R v AJP (2004) 150 A Crim R 575 Power v The Queen (1973) 131 CLR 623 CASES CITED: Deakin v R (1984) 54 ALJR 765 R v Portolesi [1973] 1 NSWLR 105 R v Sloane [1973] 1 NSWLR 203 Radenkovic v The Queen (1990) 170 CLR 623 R v Shore (1992) 66 A Crim R 37 R v Watson [1999] NSWCCA 227 R v Moon (2000) 117 A Crim R 497