R v McCann [2004] NSWCCA 48

R v McCann [2004] NSWCCA 48

It was open to the sentencing judge to regard the criminality in the commission of the offences as aggravated by the applicant persisting after repeated requests by the complainant to desist, and the incremental sentences were within the exercise of sentencing discretion; the judge did not improperly limit consideration of the applicant's physical and medical circumstances when determining sentence length; the issue of multiple punishment for the common element of infliction of bodily harm raised a difficult principle, but even if re-sentencing occurred, sentence severity would not decrease.

Parties
Crown: Regina; Applicant: Robert John McCann
Jurisdiction
Australia
Judgment Date
03 February 2004
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence; Hearing and Final Disposition
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
Sentencing, Aggravated Sexual Assault, Indecent Assault
Criminal Law Sentencing Aggravated Sexual Assault Indecent Assault

Case Brief

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Parties

Regina

Crown

Robert John McCann

Applicant

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence; Hearing and Final Disposition

Legal Issues

  1. 1 Whether the sentencing judge erred by increasing sentences for certain counts due to repeated requests by the complainant to desist
  2. 2 Whether insufficient weight was given to the applicant's physical conditions making imprisonment more onerous
  3. 3 Whether the applicant was multiply punished for the common element of infliction of bodily harm in aggravated sexual assault counts

Ratio Decidendi

It was open to the sentencing judge to regard the criminality in the commission of the offences as aggravated by the applicant persisting after repeated requests by the complainant to desist, and the incremental sentences were within the exercise of sentencing discretion; the judge did not improperly limit consideration of the applicant's physical and medical circumstances when determining sentence length; the issue of multiple punishment for the common element of infliction of bodily harm raised a difficult principle, but even if re-sentencing occurred, sentence severity would not decrease.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • Leave to appeal granted
  • Appeal against sentence dismissed