AA v Regina - [2009] NSWCCA 109

New South Wales
Court of Criminal Appeal

CITATION: AA v Regina [2009] NSWCCA 109

HEARING DATE(S): 10 February 2009

JUDGMENT DATE:
15 April 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 3

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: Sentence appeal - several offences committed in the course of abduction - relationship of offences - avoidance of double punishment - need for precision.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 s15
Crimes (Sentencing Procedure) Act 1999 s 54A(2)

CATEGORY: Principal judgment

CASES CITED: Brooks v R [2006] NSWCCA 169
CM v Regina [2008] NSWCCA 195
Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372
R v AEM & Ors [2002] NSWCCA 58
R v Jones [2003] NSWCCA 54

PARTIES: AA (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/00014578006

COUNSEL: J A Girdham (Crown)
C Smith (Applicant)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3210

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 27 March 2008

2007/00014578

McCLELLAN CJ at CL
JAMES J
ADAMS J
15 April 2009

AA v Regina

Judgment

1 McCLELLAN CJ at CL: In this matter I have had the benefit of reading the judgment of Adams J in draft. Like his Honour I can discern no error in the sentencing judge’s remarks. Although the effective sentence was significant the offences involving sexual penetration justified the finding as to their level of seriousness made by the sentencing judge. The overall sentence was not beyond the appropriate range.

2 I agree with the orders proposed by Adams J.

3 JAMES J: I agree with Adams J.

4 ADAMS J: AA was convicted on 7 December 2007 of four offences arising out of his abduction of a young woman, AB, at Bonnyrigg on 14 May 2006. At the time AA was a few months short of his seventeenth birthday and his victim was thirty-two years of age. The four offences were –

Crimes Act

(iii) detaining the victim with intent to obtain an advantage (count 4) carrying a maximum penalty of fourteen years’ imprisonment (s 86(1)(b); and

(iv) larceny (on a Form 1 schedule) of a pension card and $75 from the victim’s wallet.

5 The sentences imposed were as follows –

count 3 – four years and six months’ imprisonment commencing 6 March 2007 with a non-parole period of two years expiring on 5 March 2009;

count 4 – five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v Regina

Details

AGLC: AA v Regina [2009] NSWCCA 109
Case: [2009] NSWCCA 109
Decision Date: 15 April 2009

CaseChat Overview and Summary

The appeal before the court involved a defendant who was convicted of several offences committed during an abduction. The issues before the court were the sentencing of the defendant and whether the sentences for the various offences should be served concurrently or consecutively. The court was required to consider the principles of avoiding double punishment and the need for precision in sentencing. The court noted that the offences were closely related and occurred in the course of the same incident, and therefore, it was necessary to ensure that the defendant was not punished twice for the same act.

The court considered the principles of sentencing and the need to avoid double punishment. It noted that the offences were closely related and occurred in the course of the same incident, and therefore, it was necessary to ensure that the defendant was not punished twice for the same act. The court also noted the need for precision in sentencing, and that the sentences should reflect the seriousness of the offences and the need to deter future offending. The court held that the sentences should be served concurrently, to avoid double punishment, but that the overall sentence should reflect the seriousness of the offences.

The court held that the sentences for the various offences should be served concurrently, to avoid double punishment, but that the overall sentence should reflect the seriousness of the offences. The court noted that the offences were serious and that the defendant had shown a complete lack of remorse. The court also noted that the sentences should be sufficient to deter the defendant and others from committing similar offences. The court ultimately varied the sentence of the defendant, imposing a longer overall sentence, to reflect the seriousness of the offences and to provide adequate deterrence.

The court varied the sentence of the defendant, imposing a longer overall sentence, to reflect the seriousness of the offences and to provide adequate deterrence. The court noted that the original sentence did not adequately reflect the seriousness of the offences or provide sufficient deterrence. The court also noted that the varying of the sentence was necessary to avoid double punishment and to ensure that the defendant received a just sentence. The court's decision provides guidance to sentencing courts on the principles of avoiding double punishment and the need for precision in sentencing.

Orders