CS v R [2014] NSWCCA 229

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CS v R [2014] NSWCCA 229 Hearing dates: 2 September 2014 Decision date: 21 October 2014 Before: Beazley P at [1]; R A Hulme J at [2]; Garling J at [50] Decision: 1. Leave to appeal against sentence granted 2. Appeal allowed in part. 3. Quash the dates of commencement of each sentence and specify new commencement dates as follows: Court 5 - 23 February 2013 Count 1- 23 February 2014 Counts 2 and 3 - 23 February 2015 Count 4 - 23 February 2017 Count 6 - 23 August 2017 4. The applicant will become eligible to be released on parole when the last non-parole period expires on 22 August 2020. Catchwords: CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse with child between 10 and 16 - aggravated act of indecency with child under 16 - failure to take into account short period of pre-sentence custody - special circumstances found primarily to allow for accumulation - overall sentence did not fail to reflect special circumstances - no hierarchy regarding forms of sexual intercourse but not impermissible to impose heavier sentence to reflect nature of intercourse and surrounding circumstances - individual sentences and overall term not unreasonable or plainly unjust Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Achurch v The Queen [2014] HCA 10; 306 ALR 566 BT v R [2012] NSWCCA 276 Caristo v R [2011] NSWCCA 7 CM v R [2013] NSWCCA 341 Collier v R [2012] NSWCCA 213 Fina'i v R [2006] NSWCCA 134 Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151 Ibbs v R [1987] 163 CLR 447 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 SS v R; JC v R [2009] NSWCCA 114 Category: Principal judgment Parties: CS (Applicant) Regina (Respondent) Representation: Counsel: Mr T Gartelmann (Applicant) Ms S Dowling SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2011/301237 Decision under appeal Date of Decision: 2013-02-26 00:00:00 Before: Conlon SC DCJ File Number(s): 2011/301237