Gregory John Walsh v R [2015] NSWCCA 83

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gregory John Walsh v R [2015] NSWCCA 83 Hearing dates: 24 March 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Before: Hoeben CJ at CL at [1] Adams J at [2] McCallum J at [25] Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW – appeal against sentence – aggravated sexual assault – if incongruity between aggregate sentence and indicated sentence – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Pearce v R [1998] HCA 57; 194 CLR 610 R v Rothapfel (NSWCCA 4 August 1992, unreported, Mahoney JA, McInerney and Studdert JJ) Category: Principal judgment Parties: Gregory John Walsh (plaintiff) The Crown (defendant) Representation: Counsel: Mr A. Bellanto QC (applicant) Mr K. Alder (Crown)

Solicitors: Mark Mulock & Co. (applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/36190 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 31 January 2014 Before: Hanley DCJ File Number(s): 2011/00036190

Judgment 1. HOEBEN CJ at CL: I agree with Adams J. 2. ADAMS J: 3. On 11 December 2013 the applicant was convicted by a jury of two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) and two counts of attempted sexual assault contrary to s 61J(1) and s 61P. All four offences were committed in the early hours of 1 January 1992. The victim was a babysitter, then aged 57 years, who was sleeping in the house of the children under her care. The circumstances of aggravation were the same in respect of each count, comprising injuries inflicted to the victim. The applicant was sentenced to an aggregate period of 7 years commencing 9 December 2013 with a balance of term of 3 years. The indicated sentences were, in respect of the sexual intercourse offences, each a term of 7 years with a non-parole of 5 years and 3 months and, in respect of the attempted offences fixed terms of 3 years. 4. The applicant sought leave to appeal against the sentences, on the following grounds – Ground 1: there was an incongruity between the aggregate sentence imposed and the indicated sentences. Ground 3: the aggregate sentence imposed was manifestly excessive and outside the applicable range.