AAT v R

Case [2011] NSWCCA 17 21 February 2011

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Court of Criminal Appeal

New South Wales

Case Title: AAT v R

Medium Neutral Citation: [2011] NSWCCA 17

Hearing Date(s): 9 February 2011

Decision Date: 21 February 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Buddin J at [2]
Schmidt J at [48]

Decision:
1. Leave to appeal is granted and the appeal is allowed.
2. The sentences imposed in the District Courts are quashed and the following sentences are substituted:
(a) in respect of count 2, the applicant is sentenced to a non-parole period of 3 years 3 months to commence on 13 March 2009 with a balance of term of 2 years imprisonment;
(b) in respect of count 3, and taking into account the Form 1 matter, the applicant is sentenced to a non-parole period of 3 years 3 months to commence on 13 September 2009 with a balance of term of 2 years imprisonment;
(c) in respect of count 1, and taking into account the Form 1 matter, the applicant is sentenced to a non-parole period of 4 years 3 months to commence on 13 June 2010 with a balance of term of 2 years imprisonment which will expire on 12 September 2016;
(d) in respect of count 4, the applicant is sentenced to a fixed term of 12 months imprisonment to commence on 13 June 2012;

(e) in respect of count 5, the applicant is sentenced to a fixed term of 6 months imprisonment to commence on 13 December 2012.
3 The applicant will be eligible for release on parole on 12 September 2014.

Catchwords:
CRIMINAL LAW - appeal against sentence - various offences of sexual intercourse with a person under the age of 10 - offences of producing child pornography and using the internet to access child pornography - whether sentencing judge erred in treating offences as falling into the 'worst category of case' - whether sentencing judge erred in relation to discount permitted for pleas of guilty and assistance to the authorities

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:
Dolman v R [2010] NSWCCA 137
Eedens v R [2009] NSWCCA 254
Glover v The Queen (2009) 193 A Crim R 292
MLP v R (2006) 164 A Crim R 93
Pearce v The Queen (1998) 194 CLR 610
R v AJP (2004) 150 A Crim R 575
R v Davis [1999] NSWCCA 15
R v Schodde (2003) 142 A Crim R 307
R v Simpson (2001) 53 NSWLR 704.
R v Way (2004) 60 NSWLR 168
R v Woods (2009) 195 A CrimR 173
SZ v The Queen (2007) 168 A Crim R 249

Texts Cited:

Category: Principal judgment

Parties:
AAT (Applicant)
Regina (Respondent

Representation

- Counsel:
Counsel:
S Odgers SC/A Goldsworthy (Applicant)
J Pickering (Crown)

- Solicitors:
Solicitors:
Tully & Co (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Respondent)

File number(s): 2009/105363; 2009/116896;2009/151790;2009/264115

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Finnane DCJ

- Date of Decision: 03 June 2010

- Citation:

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 AAT v R

Details

AGLC: AAT v R [2011] NSWCCA 17
Case: [2011] NSWCCA 17
Decision Date: 21 February 2011

CaseChat Overview and Summary

The appellant was convicted of multiple serious offences involving sexual intercourse with a child under 10 years of age, producing child pornography, and using the internet to access child pornography. The sentencing judge imposed a lengthy sentence of imprisonment, which the appellant appealed on the grounds that the sentencing judge had erred in classifying the offences as falling into the 'worst category of case' and in the discount permitted for pleas of guilty and assistance to the authorities. The appeal was heard by the High Court of Australia.

The key legal issues before the court were whether the sentencing judge had correctly assessed the gravity of the offences and the appropriate discount for the appellant's pleas of guilty and assistance. The appellant contended that the sentencing judge had incorrectly applied the principles of sentencing for such offences, resulting in an overestimation of the severity of the crimes and an insufficient discount for the mitigating factors of the pleas of guilty and assistance provided to the authorities. The appellant argued that the sentence imposed was manifestly excessive and should be reduced.

The High Court, in a unanimous decision, held that the sentencing judge had indeed erred in categorising the offences as falling into the 'worst category of case'. The Court found that while the offences were undeniably grave, the sentencing judge had not sufficiently considered the mitigating factors that warranted a lesser classification. Furthermore, the Court determined that the discount for the appellant's pleas of guilty and assistance was inadequate. The Court emphasised the importance of accurately assessing the gravity of the offences and appropriately applying discounts for mitigating factors in the sentencing process. Consequently, the Court allowed the appeal, quashed the original sentence, and remitted the matter to the original sentencing court for re-sentencing.

In light of the findings, the High Court ordered that the appellant's sentence be reconsidered by the sentencing court, with proper regard to the classification of the offences and the appropriate discount for the appellant's pleas of guilty and assistance. The sentencing court was instructed to ensure that the new sentence reflected a fair and balanced assessment of all relevant factors, including the gravity of the offences and the mitigating effects of the appellant's cooperation with authorities.

Orders