Chivers v R [2010] NSWCCA 134

New South Wales Court of Criminal Appeal

CITATION: Chivers v R [2010] NSWCCA 134 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 March 2010

JUDGMENT DATE: 30 July 2010

JUDGMENT OF: Basten JA at 1; Hulme J at 52; Schmidt J at 56

(i) Grant leave to appeal and allow the appellant's appeal against his conviction on 1 August 2008 of having sexual intercourse with (KC) without consent; (ii) Quash the conviction and the sentence imposed in consequence and order that there be a new trial; (iii) Refuse leave to appeal against the sentence imposed by Goldring DCJ on 28 November 2008 in respect of a charge of assaulting (CB). (iv) Vary the commencing dates of the sentences (and non-parole periods) imposed on 6 November 2009 by Tupman DCJ for the following offences as follows:- (a) 2007/00016340-036 - Aggravated indecent assault (under authority) – imprisonment for a fixed term of 12 months – from 16 October 2009 to 16 June 2008. DECISION: (b) 2007/00016340-038 - Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) – imprisonment for a fixed term of 3 years – from 16 October 2010 to 16 June 2009. (c) 2007/00016340-005 - Committing an act of indecency towards a person under 16 years (under authority) – imprisonment for a fixed term of 12 months – from 16 October 2010 to 16 June 2009. (d) 2007/00016340-039 - 2007/00016340-040 - Two counts of sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) – (on each count) imprisonment for a fixed term of 3 years - from 16 October 2011 to 16 June 2010. (e) 2007/00016340-041-2007/00016340-042 - Two counts of attempted aggravated sexual intercourse without consent (under authority) – (on each count) imprisonment for a fixed term of 3 years – from 16 October 2012 to 16 June 2011. (f) 2007/00016340-043 - Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) – imprisonment for a fixed term of 4 years - from 16 October 2012 to 16 June 2011. (g) 2007/00016340-016 - Common assault – imprisonment for a fixed term of 18 months - from 16 October 2013 to 16 June 2012. (h) 2007/00016340-019 - Sexual intercourse without consent in circumstances of aggravation (under authority) – imprisonment for 10 years (including a non-parole period of 5 years) - from 16 October 2014 to 16 June 2013.