SKA v R; R v SKA [2009] NSWCCA 186

Appeal Outcome: Referred to an enlarged Full Court (s100/2010), 30 July 2010, [2010]HCATrans 198

New South Wales Court of Criminal Appeal

CITATION: SKA v R; R v SKA [2009] NSWCCA 186

HEARING DATE(S): 13 May 2009

JUDGMENT DATE: 14 July 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Simpson J at 3

DECISION: (i) Appeal against conviction dismissed; (ii) leave to appeal against sentence granted, appeal against severity of sentence dismissed; (iii) Crown appeal allowed in respect of the sentence imposed in respect of Count 1; (iv) that sentence quashed, in lieu thereof, the appellant be re-sentenced to imprisonment with a non-parole period of 8 years, commencing on 13 March 2009 and expiring on 12 March 2017, and a balance of term of 4 years, expiring on 12 March 2021; (v) the sentence imposed in respect of Counts 2 and 3 be varied so as to commence on 13 March 2009; the non-parole period to expire on 12 March 2011; the balance of term will expire on 12 March 2013; (vi) the sentences imposed in respect of Counts 4 and 5 be varied so as to commence on 28 December 2009; the non-parole period in respect of Count 4 to expire on 27 December 2013; the balance of term to expire on 27 December 2017; the non-parole period in respect of Count 5 to expire on 27 December 2011; the balance of term to expire on 27 December 2013.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – CRIMINAL LAW – appeal against conviction, whether verdict unreasonable or insupportable having regard to the evidence – CRIMINAL LAW – appeal – procedure – evidence given in trial by video pursuant to Evidence (Children) Act 1997 (now Criminal Procedure Act Pt 6) – whether appeal court should view video – court should proceed on transcript of video-recording – CRIMINAL LAW – sentence – appeal against severity of sentence – Crown appeal against manifest inadequacy of sentence – assessment of objective gravity – s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999 – requires assessment of objective gravity of each offence individually – application of R v Way [2004] NSWCCA 131 – failure to have regard to standard non-parole period – sentence so far below the standard non-parole period as to denote error – failure to adequately reflect objective gravity of offence – accumulation – general deterrence – appellant re-sentenced in respect of Count 1 – overall effective sentence increased