AA v The King

Case [2023] NSWDC 74

District Court


New South Wales

Medium Neutral Citation: AA v R [2023] NSWDC 74
Hearing dates: 9 March 2023
Date of orders: 30 March 2023
Decision date: 30 March 2023
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

1.   Appeal allowed in part.

2.   The order made by the magistrate is varied to the extent that it will expire on 26 May 2023.

3.   In all other respects, I confirm the orders of the magistrate.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person sentenced against sentence

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Charara v R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

Gianoutsas v Glykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

Category:Principal judgment
Parties: AA (Appellant)
Rex (Crown)
Representation:

Counsel:
C Soto (Appellant)

Solicitors:
Sterling Legal (Appellant)
Office of the Director of Public Prosecutions (Crown)
File Number(s): 2021/240286
Publication restriction: None
 Decision under appeal 
Court or tribunal:
Sutherland Local Court
Jurisdiction:
Local Court
Date of Decision:
2 September 2022
Before:
Magistrate Donnelly

Judgment

Introduction

  1. AA (the appellant) appeals against the decision of his Honour Magistrate Donnelly to make an apprehended domestic violence order (ADVO) in favour of YA (the PINOP) on 2 September 2022 at Sutherland Local Court.

  2. The appellant and the PINOP were previously married and have two children together, a daughter aged 18 and a son aged 13.

  3. On 5 November 2020 the appellant agreed, without admission of liability, to an ADVO in favour of the PINOP for a period of 2 years. The order consisted of the standard orders.

  4. On 23 August 2021 the police commenced fresh proceedings seeking a further ADVO against the appellant in favour of the PINOP. The application sought, in addition to the standard orders, a no contact order and an order that the appellant not approach any place where the PINOP resided or worked. The fresh application was based on:

  1. interaction between the parties on 23 June 2021 at the auction of the former matrimonial home;

  2. Facebook posts by the appellant of 23 March 2021, 12 April 2021 and 21 April 2021;

  3. two attendances by the appellant at the PINOP’s residence on 28 July 2021 and 7 August 2021.

  1. The magistrate made a final ADVO on 2 September 2022 for a period of 12 months commencing on 25 August 2022 and expiring on 24 August 2023. The effect of the magistrate’s order was that there were two enforceable ADVOs in place protecting the PINOP from the appellant.

  2. As there was an ADVO in force, the August 2021 application should have been an application to vary the first ADVO by seeking additional orders and/or the extension of the period of its operation. There is some force in…

Continue reading AA v The King

Sign in free to access the full text

Details
AGLC
AA v The King [2023] NSWDC 74
Case
[2023] NSWDC 74
Decision Date

CaseChat Overview and Summary

The appeal in AA v The King was brought by a person who had been sentenced in the Local Court and sought to appeal that sentence to the District Court. The appellant had been found guilty of a crime and sentenced by a magistrate. The appeal was against the sentence imposed, and the appellant argued that the sentence was excessive and should be reviewed by the District Court. The case was heard in the District Court of a particular Australian jurisdiction.

The primary legal issue before the court was whether the sentence imposed by the magistrate was appropriate and whether it should be varied by the District Court. The court needed to consider whether the sentence was excessive or whether it fell within the bounds of what could be considered a reasonable punishment for the offence committed. Additionally, the court had to determine whether there were any errors in the magistrate's consideration of the relevant factors in imposing the sentence.

The court found that while the sentence was not excessive, the order made by the magistrate was flawed in terms of its duration. The court varied the order to extend its expiry date to 26 May 2023. The court confirmed all other orders made by the magistrate, finding no errors in the magistrate's consideration of the factors relevant to the sentencing. The court held that the sentence was within the appropriate range and that the magistrate had correctly applied the relevant principles in determining the punishment.

The orders of the court were that the appeal was allowed in part, with the order made by the magistrate varied to extend its expiry date. In all other respects, the court confirmed the orders of the magistrate.

Orders

Orders of the court

1. Appeal allowed in part.

2. The order made by the magistrate is varied to the extent that it will expire on 26 May 2023.

3. In all other respects, I confirm the orders of the magistrate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.