McGrath v R [2010] NSWCCA 48

Reported Decision: 199 A Crim R 527

New South Wales Court of Criminal Appeal

CITATION: McGrath v R [2010] NSWCCA 48

HEARING DATE(S): 4 December 2009

JUDGMENT DATE: 24 March 2010

JUDGMENT OF: Macfarlan JA at 1; Blanch J at 51; Johnson J at 57

(1) Dismiss the appeal against conviction on Counts 1 and 3 of the Indictment. (2) Grant leave to the appellant to appeal against sentence. (3) Set aside the sentences imposed on the appellant on 5 February 2008. DECISION: (4) In respect of the three offences of which he was convicted, sentence the appellant to terms of imprisonment as follows: Count 1: Six years' non-parole period to date from 15 November 2007 and to expire on 14 November 2013, with a balance of term of two years expiring on 14 November 2015; Count 2: Three and a half years' non-parole period to date from 15 November 2007 and to expire on 14 May 2011, with a balance of term of one year expiring on 14 May 2012; and Count 3: Five and a half years' non-parole period to date from 15 May 2011 and to expire on 14 November 2016, with a balance of term of three years expiring on 14 November 2019.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - child sexual offences - jury not properly instructed as to need to find absence of consent and knowledge of absence of consent in respect of offences under s 61J Crimes Act 1900 - application of proviso to s 6(1) Criminal Appeal Act 1912. - CRIMINAL LAW - sentence appeal - obligation to sentence in accordance with law prevailing at the time of offences - trial judge had inappropriate regard to subsequently introduced standard non-parole periods.

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Appeal Rules Misuse of Drugs Act 1981 (WA)