Jonson v R [2016] NSWCCA 286

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jonson v R [2016] NSWCCA 286 Hearing dates: 23 August 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Before: Bathurst CJ at [1]; Beazley P at [55]; Hall J at [57]; Bellew J at [58]; N Adams J at [78] Decision: 1. Leave to appeal against sentence granted.

2. Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the offending occurred in circumstances where the applicant and the victim were in a relationship – Where the applicant lived at the premises where the offending occurred and was therefore not an intruder – Where the premises were also the home of the victim – Where the sentencing judge found that the offending was aggravated as a consequence of occurring in the home of the victim – No error on the part of the sentencing judge in reaching that finding

CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the sentencing judge found that the offending was aggravated by being committed in the presence of a child – Whether the sentencing judge erred in double counting that circumstance – No error on the part of the sentencing judge Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) Cases Cited: Aktar v The Queen [2015] NSWCCA 123 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 BIP v The Queen [2011] NSWCCA 224 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Director of Public Prosecutions v Devaldez [2003] VSCA 29; (2003) 141 A Crim R 11 Director of Public Prosecutions v Fellows [2002] VSCA 58 Director of Public Prosecutions v Joyce [2007] VSCA 215 Director of Public Prosecutions v Sims [2004] VSCA 129 DJM v The Queen [2013] NSWCCA 101 EK v The Queen (2010) 79 NSWLR 740; [2010] NSWCCA 199 Erazo v The Queen [2016] NSWCCA 139 Essex v The Queen [2013] NSWCCA 11 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51 Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 Heuston v The Queen [1993] SASC 4125 Ingham v The Queen [2011] NSWCCA 88 Melbom v The Queen [2013] NSWCCA 210 MH v The Queen [2011] NSWCCA 230 Montero v The Queen [2013] NSWCCA 214; (2013) 234 A Crim R 532 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 NLR v The Queen [2011] NSWCCA 246 Oh v The Queen [2010] NSWCCA 148 Pasoski v The Queen [2014] NSWCCA 309 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Comert [2004] NSWCCA 125 R v DK [2016] ACTCA 7 R v Johnson [2004] NSWCCA 76 R v Keenan [2005] VSCA 64 R v Kershaw [2005] NSWCCA 56 R v Lulham [2016] NSWCCA 287 R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep) R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Wickham [2004] NSWCCA 193 Category: Sentence Parties: Mark Jonson (Samir Tiyadors) (Applicant) Crown (Respondent) Representation: Counsel: D Jordan SC / J Paingakulam (Applicant) M Cinque SC / B K Baker (Respondent)