Frederick Paval ENRIQUEZ v Regina [2012] NSWCCA 60

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Frederick Paval ENRIQUEZ v Regina [2012] NSWCCA 60 Hearing dates: 20/03/12 Decision date: 11 April 2012 Before: McClellan CJ at CL at 1; Davies J at 2; Garling J at 3 Decision: (1) Leave to appeal granted (2) Appeal dismissed Catchwords: CRIMINAL LAW - Sentencing appeal - Aggravated sexual assault - Victim 15 year old step-daughter at home - No other adult at home - Remarks on victim's future consequences based on general knowledge not evidence - No error finding not of good character - No error not entitled to mitigation by reason of past record - Sentence not manifestly exercise - Appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: R v Allpass (1993) 72 A Crim R 561 R v Scott [2003] NSWCCA 28 Category: Sentence Parties: Frederick Paval Enriquez (applicant) Regina (respondent) Representation: G Corr (applicant) T Smith (respondent) Ford Criminal Lawyers (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): CCA 2009/238917 Publication restriction: Nil Decision under appeal Date of Decision: 2011-02-21 00:00:00 Before: English DCJ File Number(s): 2009/238917

Judgment 1MCCLELLAN CJ at CL: I agree with Garling J. 2DAVIES J: I agree with Garling J. 3GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court by her Honour Judge English, on 21 February 2011. 4The applicant Frederick Paval Enriquez pleaded guilty before English DCJ to one offence contrary to s 61J of the Crimes Act 1900. 5The offence occurred on 22 October 2009, when Mr Enriquez had sexual intercourse with TF without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that TF was person under the age of 16 years. 6The maximum penalty for the offence is 20 years imprisonment. A standard non-parole period of 10 years is applicable. 7As well as the offence to which he pleaded guilty, the applicant asked English DCJ to take into account one further charge of attempted aggravated sexual intercourse without consent, which was placed upon a List of Additional Charges (Form 1) pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 8The sentencing Judge imposed an overall sentence of 8 years and 6 months imprisonment with a non-parole period of 6 years commencing on 14 April 2010.