Flaherty v R; R v Flaherty [2016] NSWCCA 188

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Flaherty v R; R v Flaherty [2016] NSWCCA 188 Hearing dates: 13 July 2016 Date of orders: 24 August 2016 Decision date: 24 August 2016 Before: Hoeben CJ at CL at [1] Simpson JA at [31] Price J at [121] Decision: (1) Appeal against conviction dismissed. (2) Crown appeal dismissed. (3) Leave granted to the appellant to appeal against sentence. (4) Appeal allowed. (5) In lieu of the sentence imposed in the District Court, the appellant is sentenced to an aggregate term of imprisonment for 2 years, commencing on 24 August 2016, with a non-parole period of 3 months, to expire on 23 November 2016. (6) Direct that the appellant be released on parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW – conviction appeal – historic sexual offence – indecent assault on male – whether error in summing up – whether onus of proof reversed – no error disclosed – conviction appeal dismissed

CRIMINAL LAW – application for leave to appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 6(3) – pleas of guilty to three of five offences – whether sentencing judge failed to apply sentencing practices of the time offences committed – whether sentencing judge had adequate regard to appellant's age, ill health and delay – grounds of appeal do not disclose error

CRIMINAL LAW – Crown sentence appeal – Criminal Appeal Act 1912 (NSW), s 5D – whether sentencing judge engaged in two-stage approach – whether sentencing judge made finding of special circumstances on matters already taken into account –– whether sentencing judge erred by determining that sentences for two offences be served concurrently – whether sentencing judge failed to have regard to general deterrence – whether sentence manifestly inadequate – three grounds of appeal disclose error