MLP v R [2014] NSWCCA 183

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MLP v R [2014] NSWCCA 183 Hearing dates: 11 August 2014 Decision date: 17 September 2014 Before: Macfarlan JA at [1] Adamson J at [2] Bellew J at [3] Decision: The appeal is dismissed. Catchwords: CRIMINAL LAW - sentence - sexual assault upon a person under the age of 10 years - appellant sentenced to a non-parole period of 11 years and an additional term of 5 years, being a total term of 16 years - sentence found to have been infected by Muldrock error - matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 to determine whether some other sentence was warranted

CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - victim of offending was the appellant's 9 year old daughter - offending occurred when appellant was exercising right of access - offending occurred in the immediate presence of the appellant's other two children

CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - offending did not form part of a pattern of behaviour and was isolated - Necessity not to focus upon duration of offending when determining objective seriousness - Necessity to bear in mind long term psychological effects upon the victim

CRIMINAL LAW - Sentence - Use of sentencing statistics - Use of sentences imposed in other cases for comparative purposes - Necessity for care when conducting comparisons of sentences - Necessity to determine an appropriate sentence according to principle as opposed to numerical equivalence Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Cases Cited: Ali v R [2010] NSWCCA 35 Alseedi v R [2009] NSWCCA 185 Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390 Barbaro v R; Zirilli v R [2014] HCA 2 (2014) 305 ALR 323 Baxter v R [2007] NSWCCA 237 BP v R [2010] NSWCCA 159 Hili v R; Jones v R [2010] HCA 45 (2010) 242 CLR 520; Jolly v R [2013] NSWCCA 76 Jones v R [2012] NSWCCA 262 MLP v R [2006] NSWCCA 271 (2006) 164 A Crim R 93 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190 R v Gavel [2014] NSWCCA 56 R v Kier [2004] NSWCCA 106 R v L (NSWCCA unreported 17 June 1996) R v MAK; R v MSK [2006] NSWCCA 381 R v Nguyen [2013] NSWCCA 195 RLS v R [2012] NSWCCA 236 RR v R [2011] NSWCCA 235 R v Wickham [2004] NSWCCA 193 R v Zerafa [2013] NSWCCA 222 Category: Principal judgment Parties: MLP - Appellant Regina - Crown / Respondent Representation: Counsel: Ms R Burgess - Appellant Ms V Lidyard - Crown / Respondent Solicitors: S E O'Connor, Legal Aid NSW - Appellant S Kavanagh, Solicitor for Public Prosecutions File Number(s): 2005/00004352 Publication restriction: Nil