Ronald EATTS v R [2013] NSWCCA 14

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ronald EATTS v R [2013] NSWCCA 14 Hearing dates: 28 September 2012 Decision date: 08 February 2013 Before: McClellan CJ at CL at [1] Hidden J at [2] Adamson J at [21] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - sexual assaults in prison - sentences accumulated upon previous non-parole period - long custodial history of applicant - whether special circumstances should have been found because of accumulation Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: - Barrett v R [2011] NSWCCA 213 - R v Killick [2002] NSWCCA 1, 127 A Crim R 273 Category: Principal judgment Parties: Ronald Edward Eatts (applicant) Regina (respondent Crown) Representation: Counsel: C Loukas (applicant) H Wilson (respondent Crown) Solicitors: Aboriginal Legal Service (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent Crown) File Number(s): 2008/7260 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-02-04 00:00:00 Before: Bennett SC DCJ File Number(s): 2008/7260

Judgment 1McCLELLAN CJ at CL: I agree with Hidden J. 2HIDDEN J: The applicant, Ronald Edward Eatts, pleaded guilty in the District Court to the following charges: two charges of sexual intercourse without consent, an offence under s 61I of the Crimes Act 1900 which carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 7 years; a charge of aggravated sexual intercourse without consent, an offence under s 61J of the Act which carries a maximum sentence of imprisonment for 20 years and a standard non-parole period of 10 years. The applicant asked the sentencing judge to take into account on a Form 1, when sentencing him for the aggravated offence, two further offences of sexual intercourse without consent and one of indecent assault. 3On 4 February 2009, the following sentences were imposed: On each of the charges of sexual intercourse without consent, imprisonment for 9 years and 4 months with a non-parole period of 7 years, dating from 29 October 2008; On the charge of aggravated sexual intercourse without consent, taking into account the matters on the Form 1, imprisonment for 12 years with a non-parole period of 9 years, also to date from 29 October 2008. The overall sentence, then, was imprisonment for 12 years with an effective non-parole period of 9 years. The significance of the commencement date of 29 October 2008 will become apparent. 4The applicant seeks leave to appeal against those sentences. The application is some 3 years out of time, and his application for extension of time is founded upon the material in an affidavit of his solicitor. In written submissions, the Crown prosecutor challenged the adequacy of the explanation proffered by that affidavit and argued that an extension should not be permitted. However, the issue was not addressed in oral submissions, counsel for the applicant and the Crown both dealing with the merit of the matter. Given the seriousness of the offences, and the length and practical effect of the sentences imposed, I would grant an extension of time.