Trevor Essex v R [2013] NSWCCA 11

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Trevor Essex v R [2013] NSWCCA 11 Hearing dates: 13 November 2012 Decision date: 05 February 2013 Before: McClellan CJ at CL [1] Rothman J [2] Bellew J [3] Decision: 1. Leave to appeal granted; 2. Appeal allowed; 3. Quash the sentence imposed in respect of count (4) in the indictment, being the count pursuant to s. 66A(2) of the Crimes Act; 4. In lieu, sentence the applicant in respect of count (4) to a non-parole period of 8 years and 6 months imprisonment, to date from 9 February 2010 and to expire on 8 August 2018, with an additional term of 3 years 6 months imprisonment to date from 9 August 2018 and to expire on 8 February 2022, a total term of imprisonment of 12 years. Catchwords: APPEAL - criminal law - sexual offences - aggravated sexual intercourse of a child under 10 - intercourse constituted by insertion of hose into victim's vagina - victim aged 3 years at the time - where no evidence of offence being motivated by sexual gratification and no evidence of grooming - errors on the part of the sentencing judge in failing to have regard to such matters assessing objective seriousness of offence - further error on the part of the sentencing judge in concluding that the offending was aggravated because it occurred in the victim's home - sentence manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Aldous v R [2012] NSWCCA 153 Butler v R [2012] NSWCCA 23 EK v R (2010) 208 A Crim R 157 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 378 MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Comert [2004] NSWCCA 125 R v Dunn CCANSW 15 April 1992 unreported R v King [2009] NSWCCA 117 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Humphries [2004] NSWCCA 370 Tapai v R [2009] NSWCCA 246 Williams v R [2012] NSWCCA 172 Zrieka v R [2012] NSWCCA 44 Category: Sentence Parties: Trevor Essex - Applicant Crown - Respondent Representation: S Odgers SC and C Feiner - Applicant J Dwyer - Respondent Blair Criminal Lawyers - Applicant S Kavanagh,Solicitor for Public Prosecutions (NSW) - Respondent File Number(s): 2009/144211 2009/191931 Publication restriction: Nil Decision under appeal Date of Decision: 2011-08-16 00:00:00 Before: Sorby DCJ