Gagan (a pseudonym) v R [2020] NSWCCA 47

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gagan (a pseudonym) v R [2020] NSWCCA 47 Hearing dates: 13 March 2020 Decision date: 25 March 2020 Before: Leeming JA at [1]; Harrison J at [39]; Hamill J at [40]. Decision: (1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentence imposed by the District Court on 28 March 2019, and in lieu thereof:

(i) for counts 1 and 2, sentence the offender to concurrent terms of imprisonment of 9 years, with non-parole periods of 5 years, such sentences to commence on 19 October 2017 and to expire on 18 October 2026, with the non-parole periods to expire on 18 October 2022, and

(ii) for counts 4 and 5, sentence the offender to concurrent terms of imprisonment of 9 years, with non-parole periods of 5 years, such sentences to commence on 19 October 2018 and to expire on 18 October 2027, with the non-parole periods to expire on 18 October 2023.

The total effective sentence is of 10 years imprisonment, with a non-parole period of 6 years. The earliest the offender is eligible to apply for release on parole is 19 October 2023. Catchwords: CRIMINAL LAW – appeal against sentence – child sexual assault – offender suffered from serious mental illnesses – sentencing judge failed to reduce role of general deterrence despite joint submission from Crown and defence – sentencing judge found aggravating factor of substantial harm – whether victim impact statement sufficient to establish substantial harm over and above harm inherent in offence – appeal allowed and offender resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 66A, 578A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 25AA Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Manly v The Queen [2014] NSWCCA 59; 240 A Crim R 92 Marrow v R [2015] NSWCCA 282 Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Cattell [2019] NSWCCA 297 R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 Ryan v R [2017] NSWCCA 209 Category: Principal judgment Parties: Gagan (a pseudonym) (Applicant) The Crown (Respondent) Representation: Counsel: J Brock (Applicant) F Veltro (Crown)