BRADBERY v REGINA [2008] NSWCCA 93

BRADBERY v REGINA [2008] NSWCCA 93

The appeal was allowed because the sentencing judge overstated the objective seriousness of the offences, particularly the first three offences, used starting points that were too high for offences under the broad historical form of s 76 of the Crimes Act 1900 with a five-year maximum, and erred by applying current sentencing practices to the non-parole period rather than the more liberal practice applicable at the time of the offending. The extraordinary delay, the applicant's long offence-free period, age and frailty reinforced the conclusion that the sentences were manifestly excessive. Hardship to the applicant's wife was not sufficiently exceptional to mitigate sentence.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentences Imposed in the District Court
Outcome
Application for leave granted, appeal allowed, District Court sentences quashed, and new sentences imposed.
Legal Topics
['indecent Assault' 'historical Sexual Offences' 'manifest Excess' 'delay in Prosecution' 'non Parole Period' 'hardship to Third Parties' 'sentencing Practices at the Time of Offending']
['criminal Law' 'sentencing'] ['indecent Assault' 'historical Sexual Offences' 'manifest Excess' 'delay in Prosecution' 'non Parole Period' 'hardship to Third Parties' 'sentencing Practices at the Time of Offending']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge failed to have regard to the pattern of sentencing that applied when the offences were committed in the early 1970s.' 'Whether the sentencing judge failed to give due and proper weight to the impact of the extraordinary delay in bringing the matters to court.' "Whether the sentencing judge failed to give due and proper weight to the impact of imprisonment on the applicant's wife, for whom he was the principal carer." 'Whether the sentencing judge erred in setting the non-parole period by applying current sentencing practices rather than the more liberal practice applicable in the 1970s.']

Ratio Decidendi

The appeal was allowed because the sentencing judge overstated the objective seriousness of the offences, particularly the first three offences, used starting points that were too high for offences under the broad historical form of s 76 of the Crimes Act 1900 with a five-year maximum, and erred by applying current sentencing practices to the non-parole period rather than the more liberal practice applicable at the time of the offending. The extraordinary delay, the applicant's long offence-free period, age and frailty reinforced the conclusion that the sentences were manifestly excessive. Hardship to the applicant's wife was not sufficiently exceptional to mitigate sentence.

Court Disposition

Application for leave granted, appeal allowed, District Court sentences quashed, and new sentences imposed.

Orders

  • ['On the offence under s 76 Crimes Act 1900, committed between 1 January 1970 and 24 April 1971, the applicant is sentenced to a fixed term of 6 months imprisonment, to date from 16 July 2007, expiring 15 January 2008.' 'On the offence under s 76 Crimes Act, committed between 27 April 1971 and 31 December 1973, the...