Nelson John Bull v The Queen

[2004] ACTCA 8

NELSON JOHN BULL v THE QUEEN [2004] ACTCA 8 (17 February 2004)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 30 - 2003
No. SCC 1 of 2003

Judges:         Crispin P, Connolly and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date:            17 February 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 - 2003
  )          No. SCC 1 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NELSON JOHN BULL

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Connolly and Gyles JJ
Date:  17 February 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal is dismissed. 

IN THE SUPREME COURT OF THE       )          No. ACTCA30 - 2003
  )          No. SCC 1 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NELSON JOHN BULL

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  17 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal against the severity of a sentence imposed upon the appellant for committing an act of indecency upon a five year old child contrary to section 61(1) of the Crimes Act 1900.  The appellant was sentenced to a term of six years, 11 months and 10 days imprisonment to date from 15 September 2003.  A non-parole period of four years, seven months, and 10 days was fixed to start from the same date.

1. The learned trial judge found that the offence involved placing one hand down the underpants of the young girl for his own sexual gratification and touching her in the vaginal area.  In the course of this he ejaculated and some of his semen went down inside the front of the child’s pants.  It need scarcely be said that this was a very serious offence.

1. Furthermore, the evidence revealed that he had previous convictions for offences of a similar character and that following the sentence for those offences he had had the benefit of a course of rehabilitation intended to address this type of problem. 

1. His Honour found that the appellant had shown no remorse, though he had conducted himself in relation to the investigation of the matter in a way calculated to minimise further harm to the child by voluntarily attending at a police station and submitting DNA samples which ultimately established that it was his semen on the child’s underpants.  Furthermore, to his credit it should be noted that he instructed his counsel not to have the child brought before the court for cross-examination. 

1. Nonetheless, it was, in short, a very serious offence, unmitigated by any plea of guilty, unmitigated by any display of remorse and unmitigated by previous evidence of substantial good character.  In these circumstances it seems to me that the sentence which his Honour imposed was amply justified and that the only question that arises in my mind as to whether it was adequate. 

1. In the circumstances I would dismiss the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of President Crispin.

Associate:

Date:     30 April 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA30 - 2003
  )          No. SCC 1 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NELSON JOHN BULL

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  17 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J

1. Yes, I would also dismiss the appeal, adding only that I fully endorse what Gyles J had to say yesterday in Robinson v R, ACTCA 36 of 2003 about appeals on sentence when the grounds go only to sentencing discretion.  The possibility of this court on the cross appeal increasing sentences where in our mind the only question is adequacy of sentence should be borne in mind by those advising appellants.

I certify that the preceding paragraph numbered seven (7) is a true copy of the Reasons for Judgment herein of Justice Connolly.

Associate:

Date:     30 April 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA30 - 2003
  )          No. SCC 1 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NELSON JOHN BULL

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  17 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

GYLES J:

1. I agree.

I certify that the preceding paragraph numbered eight (8) is a true copy of the Reasons for Judgment herein of Justice Gyles.

Associate:

Date:     30 April 2004

Counsel for the Appellant:  Mr J Sabharwal
Solicitor for the Appellant:  Legal Aid Office (ACT)

Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  17 February 2004
Date of judgment:  17 February 2004