Regina v Michael Arthur Falls [2004] NSWCCA 335

Regina v Michael Arthur Falls [2004] NSWCCA 335

The sentencing judge was entitled to sentence the applicant on the basis of the agreed statement of facts and to disregard the applicant's inconsistent or additional evidence, including his assertions that he merely wanted a conversation and voluntarily desisted. However, the starting sentence of ten years, reduced to eight years for the guilty plea, was manifestly excessive and disproportionate to the applicant's actual criminality in an attempted detention involving minimal physical contact, although committed against a twelve-year-old child while the applicant was on parole for a sexual offence. The appropriate sentence was six years imprisonment with a non-parole period of four years...

Jurisdiction
Australia
Judgment Date
01 October 2004
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; applicant re-sentenced.
Legal Topics
['attempt to Detain for Advantage' 'sexual Advantage' 'guilty Plea' 'agreed Statement of Facts' 'sentencing Fact Finding' 'manifest Excess' 'non Parole Period']
['criminal Law' 'sentencing'] ['attempt to Detain for Advantage' 'sexual Advantage' 'guilty Plea' 'agreed Statement of Facts' 'sentencing Fact Finding' 'manifest Excess' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred by sentencing the applicant on the basis of an agreed statement of facts despite the applicant giving evidence inconsistent with or additional to those facts and not being cross-examined on it.' 'Whether the sentencing judge erred in characterising the offence as a serious sexual offence.' 'Whether the sentence of eight years imprisonment with a non-parole period of six years was manifestly excessive.' 'Whether special circumstances justified departure from the statutory ratio between head sentence and non-parole period.']

Ratio Decidendi

The sentencing judge was entitled to sentence the applicant on the basis of the agreed statement of facts and to disregard the applicant's inconsistent or additional evidence, including his assertions that he merely wanted a conversation and voluntarily desisted. However, the starting sentence of ten years, reduced to eight years for the guilty plea, was manifestly excessive and disproportionate to the applicant's actual criminality in an attempted detention involving minimal physical contact, although committed against a twelve-year-old child while the applicant was on parole for a sexual offence. The appropriate sentence was six years imprisonment with a non-parole period of four years...

Court Disposition

Leave to appeal granted; appeal allowed; applicant re-sentenced.

Orders

  • ['The sentence imposed by Blanch DCJ is quashed.' 'In lieu, the applicant is sentenced to imprisonment for 6 years to date from 28 August 2002.' 'A non-parole period of 4 years 6 months is specified, expiring on 27 February 2007, the date upon which the applicant is eligible to be released to parole.']