GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 308

Reported Decision: 198 A Crim R 395

New South Wales Court of Criminal Appeal

CITATION: GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 308 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 July 2009

JUDGMENT DATE: 18 December 2009

JUDGMENT OF: Basten JA at 1; Hulme J at 82; Johnson J at 100

(a) Grant leave to appeal against sentence. (b) Quash the sentences imposed in the Sydney District Court on 11 April 2008. (c) Sentence the applicant as follows: Count 1: Fixed term of 1.5 years imprisonment to commence on 4.8.07 and to expire on 3.2.09. Count 2: Fixed term of 2.5 years imprisonment to commence on 4.2.08 and to expire on 3.8.10. DECISION: Count 3: Fixed term of 2.5 years imprisonment to commence on 4.2.09 and expire on 3.8.11. Count 4: Fixed term of 3 years imprisonment to commence on 4.2.10 and expire on 3.2.13. Count 5: Fixed term of 2 years imprisonment to commence on 4.2.11 and expire on 3.2.13. Count 7: Fixed term of 3 years imprisonment to commence on 4.2.12 and expire on 3.2.15. Count 8: Fixed term of 1.5 years imprisonment to commence on 4.2.13 and expire on 3.8.14. Count 6: Taking into account the matters on form 1: a full term of 6 years imprisonment to commence on 4.2.13 and expire on 3.2.19 with a non-parole period of 4 years, commencing on 4.2.13 and expiring on 3.2.17. The applicant will be eligible for release on parole on 3 February 2017.

CATCHWORDS: CRIMINAL LAW – appeal against sentence - sexual intercourse with a person between the ages of 10 and 16 under the authority of offender – aggravated act of indecency – discount for early plea of guilty – finding of special circumstances – proper approach to sentencing – whether sentences imposed notionally exceeded maximum penalty available – whether manifestly excessive - SENTENCE – relevant factors – representative charges – specific offences charged occurring as part of overall course of conduct – whether surrounding circumstances and course of conduct relevant to objective circumstances and seriousness of offence - WORDS & PHRASES – "circumstances of aggravation" – "manifestly excessive" – "objective seriousness" – "representative charges" – "special circumstances" – "surrounding circumstances"