R v Gerard CORTESE [2013] NSWCCA 148

R v Gerard CORTESE [2013] NSWCCA 148

The sentencing judge erred in relation to count 2 by mistaking the facts and acting on a wrong principle: her Honour conflated volatility in the relationship with volatility or prevarication in consent, and treated the pre-existing relationship as mitigating culpability when the agreed facts showed the victim consistently refused sexual contact. The aggravated sexual intercourse offence involved detention overnight, threats of violence, aggressive and humiliating language and rape, and was not at the bottom of the range of seriousness for an offence under s 61J(1). The wholly suspended sentence was therefore inadequate and the respondent had to be re-sentenced. No error was shown in the...

Jurisdiction
Australia
Judgment Date
26 June 2013
Procedural Posture
Crown Appeal Against Sentence / Appeal Pursuant to S 5 D of the Criminal Appeal Act 1912 From Sentences Imposed in the District Court
Outcome
Crown appeal allowed in part; respondent re-sentenced on count 2 to imprisonment for three years with a non-parole period of eighteen months; appeal against count 1 otherwise dismissed.
Legal Topics
['aggravated Sexual Assault' 'act of Indecency' 'objective Seriousness' 'pre Existing Relationship Between Offender and Victim' 'manifest Inadequacy' 'suspended Sentence' 'residual Discretion' 'special Circumstances']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Sexual Assault' 'act of Indecency' 'objective Seriousness' 'pre Existing Relationship Between Offender and Victim' 'manifest Inadequacy' 'suspended Sentence' 'residual Discretion' 'special Circumstances']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Crown Appeal Against Sentence / Appeal Pursuant to S 5 D of the Criminal Appeal Act 1912 From Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the aggravated sexual intercourse offence under s 61J(1) of the Crimes Act 1900 as being at the bottom of the range.' "Whether the pre-existing relationship between the respondent and the victim mitigated the respondent's culpability for the aggravated sexual intercourse offence." 'Whether the sentence for the act of indecency offence under s 61L of the Crimes Act 1900 disclosed error.' 'Whether the Court should exercise the residual discretion not to intervene despite error in the sentence for the aggravated sexual intercourse offence.' 'What sentence should be imposed on the respondent for the aggravated sexual intercourse offence.']

Ratio Decidendi

The sentencing judge erred in relation to count 2 by mistaking the facts and acting on a wrong principle: her Honour conflated volatility in the relationship with volatility or prevarication in consent, and treated the pre-existing relationship as mitigating culpability when the agreed facts showed the victim consistently refused sexual contact. The aggravated sexual intercourse offence involved detention overnight, threats of violence, aggressive and humiliating language and rape, and was not at the bottom of the range of seriousness for an offence under s 61J(1). The wholly suspended sentence was therefore inadequate and the respondent had to be re-sentenced. No error was shown in the...

Court Disposition

Crown appeal allowed in part; respondent re-sentenced on count 2 to imprisonment for three years with a non-parole period of eighteen months; appeal against count 1 otherwise dismissed.

Orders

  • ['Crown appeal allowed in part.' 'The sentence imposed on the respondent by the District Court on 1 March 2013 in respect of the offence under s 61J(1) of the Crimes Act 1900 be quashed.' 'In lieu thereof the respondent be sentenced to imprisonment for three years commencing on 4 June 2013 and expiring on 3 June...