Facer (a pseudonym) v R [2019] NSWCCA 180

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Facer (a pseudonym) v R [2019] NSWCCA 180 Hearing dates: 14 June 2019 Decision date: 09 August 2019 Before: Leeming JA at [1]; Davies J at [95]; Button J at [96] Decision: 1. Grant leave to appeal, confined to ground 2.

2. Appeal allowed.

3. Quash the sentence imposed on 1 March 2017, and in lieu thereof impose an aggregate sentence of 16½ years imprisonment, commencing 14 July 2015 and expiring 13 January 2032, with a non-parole period of 12 years and 4 months, expiring 13 November 2027. The indicative sentences are: Count 2, taking into account the Form 1 offences: 12 years with a non-parole period of 9 years. Count 3: 6 years with a non-parole period of 4½ years. Count 4: 6 years and 9 months with a non-parole period of 5 years. Count 5: 7½ years with a non-parole period of 5½ years. Count 6: 9 years with a non-parole period of 6 years and 9 months. Count 10: 12 years with a non-parole period of 9 years. The earliest date on which the applicant will be eligible for release on parole is 13 November 2027. Catchwords: CRIMINAL LAW – appeal against sentence – series of sexual assaults against granddaughter – whether failure to make finding of special circumstances disclosed error – whether sentence manifestly excessive – comparison with other sentences – appeal allowed and applicant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66A, 66B, 66C, 578A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 53A Criminal Appeal Act 1912 (NSW), s 5 Cases Cited: BR v R [2015] NSWCCA 255 Bravo v R [2015] NSWCCA 302 Davies v R [2019] NSWCCA 45 Franklin v R [2016] NSWCCA 319 Gibbons (a pseudonym) v R [2019] NSWCCA 150 R v Boon [2019] NSWSC 813 R v Gavel [2014] NSWCCA 56 R v RJB [2019] NSWSC 719 R v Yavuz (No 6) [2019] NSWSC 95 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Category: Principal judgment Parties: Facer (a pseudonym) (Applicant) Crown (Respondent) Representation: Counsel: