Corby v R [2010] NSWCCA 146

New South Wales Court of Criminal Appeal

CITATION: Corby v R [2010] NSWCCA 146

HEARING DATE(S): 5 July 2010

JUDGMENT DATE: 14 July 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Johnson J at 3

1. grant leave to appeal against sentences imposed at the Dubbo District Court on 25 September 2009 granted. 2. Appeal allowed and sentences quashed. 3. For the offence under s.61N(1) Crimes Act 1900 committed on 26 January 2009, the Applicant is sentenced to a fixed term of imprisonment for three months commencing on 10 March 2009 and concluding on 9 June 2009. DECISION: 4. For the offence under s.61N(1) Crimes Act 1900 committed on 27 January 2009, the Applicant is sentenced to imprisonment for four months and two weeks commencing on 10 March 2009 and concluding on 23 July 2009. 5. For the offence under s.61N(1) Crimes Act 1900 committed on 30 January 2009, the Applicant is sentenced to a fixed term of imprisonment for six months commencing on 10 March 2009 and expiring on 9 September 2009. 6. For the offence under s.61M(2) Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 months and two weeks commencing on 10 July 2009 and concluding on 23 August 2010 with a balance of term of 13 months and two weeks commencing on 24 August 2010 and concluding on 7 October 2011. 7. An order is made under s.50 Crimes (Sentencing Procedure) Act 1999, directing the release of the Applicant on parole at the end of the non-parole period on 23 August 2010.

CATCHWORDS: CRIMINAL LAW - sentence - pleas of guilty - indecent assault by 39-year old male on 14-year old girl - offence involved kissing on lips and cuddling - three offences of commit act of indecency towards victim - offender sent images of his erect penis to victim by multimedia text message via mobile telephone - offender had honest but unreasonable belief that victim was over 16 years - victim with limited intellectual capacity - offender with limited cognitive capacity and limited social skills - relevance of standard non-parole period for indecent assault offence - failure by sentencing Judge to engage in assessment of objective seriousness concerning all offences - error established - lesser sentences warranted in law after proper assessment of objective seriousness of offences and subjective circumstances of offender - appeal allowed