R v Alcazar [2017] NSWCCA 51

R v Alcazar [2017] NSWCCA 51

The sentence was manifestly inadequate because the sentencing judge failed to resolve and explain the issue of consent, understated the objective seriousness and moral culpability of the simultaneous in-company sexual assaults on an intoxicated and vulnerable victim, failed adequately to reflect general deterrence, and erred by double counting protective custody when finding special circumstances. The evidence established that the respondent knew the victim did not consent. The residual discretion not to interfere was not engaged, so the appeal was upheld and the respondent was resentenced.

Jurisdiction
Australia
Judgment Date
24 March 2017
Procedural Posture
Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW on 23 November 2016
Outcome
Appeal upheld; sentence set aside; respondent resentenced.
Legal Topics
['aggravated Sexual Assault' 'manifest Inadequacy of Sentence' 'consent in Sexual Assault Offences' 'objective Seriousness' 'general Deterrence' 'special Circumstances' 'residual Discretion in Crown Appeals']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Sexual Assault' 'manifest Inadequacy of Sentence' 'consent in Sexual Assault Offences' 'objective Seriousness' 'general Deterrence' 'special Circumstances' 'residual Discretion in Crown Appeals']

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW on 23 November 2016

Legal Issues

  1. 1 ['Whether the aggregate sentence imposed for three offences of aggravated sexual assault was manifestly inadequate.' "Whether the sentencing judge erred by failing to make findings about the respondent's knowledge of the victim's lack of consent under s 61HA(3) of the Crimes Act 1900 (NSW)." 'Whether the sentencing judge erred in assessing the objective seriousness and moral culpability of the offending.' 'Whether the sentence adequately reflected the need for general deterrence.' 'Whether the finding of special circumstances involved impermissible double counting.' 'Whether the Court should exercise its residual discretion not to interfere with the sentence.']

Ratio Decidendi

The sentence was manifestly inadequate because the sentencing judge failed to resolve and explain the issue of consent, understated the objective seriousness and moral culpability of the simultaneous in-company sexual assaults on an intoxicated and vulnerable victim, failed adequately to reflect general deterrence, and erred by double counting protective custody when finding special circumstances. The evidence established that the respondent knew the victim did not consent. The residual discretion not to interfere was not engaged, so the appeal was upheld and the respondent was resentenced.

Court Disposition

Appeal upheld; sentence set aside; respondent resentenced.

Orders

  • ['The appeal be upheld.' 'The sentence be set aside.' 'Mr Alcazar be resentenced to a term of imprisonment of 6 years and 6 months commencing on 29 June 2015 and expiring on 28 December 2021, with a non-parole period of 4 years and 3 months.']