R v MW NON PUBLICATION ORDER [2007] NSWCCA 291

New South Wales Court of Criminal Appeal

CITATION: R v MW NON PUBLICATION ORDER [2007] NSWCCA 291

HEARING DATE(S): 18 September 2007

JUDGMENT DATE: 16 October 2007

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 47; Bergin J at 48

DECISION: 1. Uphold the Crown appeal and quash the sentences imposed on the respondent on 23 March 2007 in the District Court; 2. For count 1 on the indictment the offence of aggravated sexual assault without consent the respondent is sentenced to a fixed term of 6 years commencing on 8 August 2005 and expiring on 7 August 2011; 3. For count 2 on the indictment (and taking into account the matter on the Form 1) the respondent is sentenced to a non-parole period of 8 years commencing on 8 August 2006 and expiring on 7 August 2014 with a further term of 3 years commencing on 8 August 2014 and expiring on 7 august 2017.; 4. The overall sentence is a non-parole period of 9 years with a total term of 12 years

CATCHWORDS: CRIMINAL LAW – s 5D appeal against sentence – sexual intercourse without consent upon stepdaughter – attempt to choke – affected by drugs – concurrent sentences imposed – objective seriousness of an offence – standard non-parole periods – principles of Crown appeals – whether too much weight given to subjective circumstances – whether sentence manifestly inadequate

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Gordon (1994) 71 A Crim R 459 R v Oloitoa [2007] NSWCCA 177 R v Witchard [2007] NSWCCA 167 R v XY (2007) NSWCCA 72