R v Egan [2016] NSWCCA 285

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Egan [2016] NSWCCA 285 Hearing dates: 12 August 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Before: Macfarlan JA at [1] Hall J at [3] Bellew J at [141] Decision: 1. The appeal is allowed.

2. The sentences imposed by the District Court on 23 March 2016 are quashed.

3. The respondent is re-sentenced upon the following basis:

(a) In respect of the first count the respondent is sentenced to a term of imprisonment comprising a non-parole period of 3 years and 9 months to commence on 23 March 2016 and to expire on 22 December 2019, with a parole period of 1 year and 6 months, expiring on 22 June 2021.

(b) In respect of the second count the respondent is sentenced to a term of imprisonment comprising a non-parole period of 3 years 9 months commencing on 23 September 2016 and expiring on 22 June 2020, with a parole period of 1 year 6 months expiring on 22 December 2021.

4. The total effective sentence in respect of Counts 1 and 2 accordingly is a total sentence of 5 years and 9 months comprising an effective non-parole period of 4 years and 3 months and a parole period of 1 year and 6 months.

5. Accordingly, the first date upon which the respondent will be eligible for parole will be 22 June 2020. Catchwords: CRIMINAL LAW – Sentence – Crown appeal against inadequacy – Two counts of sexual intercourse with person under age of 10 years – Respondent communicated apology to victim prior to any complaint being made to police or disclosure to family – Where sentencing judge imposed a non-parole period of 18 months imprisonment with an additional term of 18 months in each case – Where sentences were ordered to be served wholly concurrently -– Whether sentencing judge erred in failing to partially accumulate the sentences – Whether sentencing judge erred in having regard to the respondent's protective status in custody – Whether the sentences imposed were manifestly inadequate – Grounds of appeal established – Respondent resentenced – Observations as to the treatment by the sentencing judge of the issue of the duration of offending – Observations as to the finding of the sentencing judge that special circumstances were established justifying a variation between the statutory ratio between the non-parole period and the head sentence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: AWKO v R [2010] NSWCCA 90 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Cahyadi v R (2007) A Crim R 41; [2007] NSWCCA 1 CMB v Attorney-General for New South Wales (2015) 89 ALJR 407; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kite v Regina [2009] NSWCCA 12 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MLP v R (2006) 164 A Crim R 93; [2006] NSWCCA 271 MLP v R [2014] NSWCCA 183 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v AB [2011] NSWCCA 229 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Carter [2003] NSWCCA 243 R v Christoff (2003) 140 A Crim R 45; [2003] NSWCCA 52 R v Cramp [2004] NSWCCA 264 R v Dashti [2016] NSWCCA 251 R v Fidow [2004] NSWCCA 172 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Johnston [2005] NSWCCA 80 R v Kaliti [2001] NSWCCA 268; (2001) 34 MVR 160 R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 R v LG [2012] NSWCCA 249 R v Mulligan [2016] NSWCCA 47 R v O'Connor [2014] NSWCCA 53 R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 R v Ronald King [2009] NSWCCA 117 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Spiers [2008] NSWCCA 107 R v Stone (1995) 85 A Crim R 436 R v Tuuta (2014) 239 A Crim R 399; [2014] NSWCCA 40 R v Wake (unrep) 9/7/97, 60115/97 NSWCA R v Zolfonoon [2016] NSWCCA 250 RLS v R [2012] NSWCCA 236 RR v R [2011] NSWCCA 235 SW v R [2013] NSWCCA 255 Category: Principal judgment Parties: Regina (Appellant) David Paul Egan (Respondent) Representation: Counsel: H Baker (Appellant) L Goodsell (Respondent)Solicitors: Solicitor for Public Prosecutions (Appellant) Bainbridge Legal (Respondent) File Number(s): 2015/41240 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 March 2016 Before: Buscombe DCJ File Number(s): 2015/41240