NSW Caselaw
Reported Decision: 194 A Crim R 1[2010] ALMD 4178
New South Wales Court of Criminal Appeal
CITATION: R v Hibberd [2009] NSWCCA 20
HEARING DATE(S): 8 December 2008
JUDGMENT DATE: 11 March 2009
JUDGMENT OF: Tobias JA at 1; James J at 24; Price J at 29
DECISION: (1) The Crown appeal against sentence be upheld. (2) The sentence imposed in the District Court on 20 March 2008 in respect of count 4 being an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act be quashed. (3) In lieu thereof the respondent in respect of count 4 is sentenced to a term of imprisonment of 7 years consisting of a non-parole period of 4 years 6 months commencing on 23 July 2009 and expiring on 22 January 2014 with a balance of term of 2 years 6 months commencing on 23 January 2014 and expiring on 22 July 2016. (4) The sentences imposed for counts 1, 2, 3, 5, 6 and 7 are confirmed. The earliest date on which the respondent will be eligible for release to parole is 22 January 2014.
CATCHWORDS: Criminal Law - Crown appeal - particular offence - sexual intercourse without consent - assessment of objective seriousness of offence - relevant factors - consideration of seriousness of digital penetration - sentence manifestly inadequate
Crimes Act 1900 s 61, s 61I, s 61L, s 562I(1), LEGISLATION CITED: s 562(1) Criminal Procedure Act 1985 s 166,
CATEGORY: Principal judgment
House v The Queen (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 194 CLR 610 Regina v Fernando [2002] NSWCCA 28 Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) R v Allpass (1994) 72 A Crim R 561 R v Hallocoglu (1992) 29 NSWLR 78 CASES CITED : R v Hiron [2007] NSWCCA 336 R v Jeffries [2008] NSWCCA 144 R v Johnson [2004] NSWCCA 140 R v McNaughton [2006] NSWCCA 242 R v M.A.K R v M.S.K [2006] NSWCCA 381 R v Ponfield (1999) 48 NSWLR 327 R v Simpson (2001) 53 NSWLR 704 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168
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