AB v R

Case [2014] NSWCCA 339


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: AB v R [2014] NSWCCA 339
Hearing dates:14 November 2014
Decision date: 24 December 2014
Before: Meagher JA at [1]; Simpson J at [2]; Wilson J at [73]
Decision:

1. Grant leave to appeal against sentence.

2. Appeal dismissed

Catchwords:

APPEAL - appeal against severity of sentence - powers of court on appeal - appellate court's authority to intervene - appellate court's jurisdiction to review findings of fact - Criminal Appeal Act 1912 (NSW), ss 5 and 6(3) - Skinner v The King [1913] HCA 32; 16 CLR 336 - R v O'Donoghue (1986) 34 A Crim R 397 - Kentwell v The Queen [2014] HCA 37; 313 ALR 451

APPEAL - sentencing - parity - whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - co-offender charged with additional offences - Children (Criminal Proceedings) Act 1987 (NSW), s 6

CRIMINAL LAW - whether error in finding applicant intended to torture victim - whether error in assessment of objective seriousness of murder - frenzied attack not incompatible with intent to torture

CRIMINAL LAW - whether error in allowing no discount for guilty plea - protection of public - Milat v R; Klein v R [2014] NSWCCA 29

CRIMINAL LAW - murder - aggravated break and enter and commit serious indictable offence - intimidation - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 6, 15A
Crimes Act 1900 (NSW), s 18, s 113(2)
Criminal Appeal Act 1912 (NSW), s 5, 6(3)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Aoun v R [2011] NSWCCA 284
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19
Fox v Percy [2003] HCA 22; 214 CLR 118
Jones v The Queen (1993) 67 ALJR 376
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Milat v R; Klein v R [2014] NSWCCA 29
Milat v The Queen [2014] HCA Trans 205
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Peters v R [2013] NSWCCA 324
R v Geddes (1936) 36 SR (NSW) 554
R v Gosper (1928) 45 WN (NSW) 165
R v Khouzame [2000] NSWCCA 505
R v Kyriakou (1987) 29 A Crim R 50
R v O'Donoghue (1986) 34 A Crim R 397
R v Skinner (1913) 13 SR (NSW) 280
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Skinner v The King [1913] HCA 32; 16 CLR 336
Warren v Coombes [1979] HCA 9; 142 CLR 531
Whittaker v The King [1928] HCA 28 ;(1928) 41 CLR 230
Category:Principal judgment
Parties: AB (Applicant)
Regina (Respondent)
Representation: Counsel:
S Odgers SC (Applicant)
J A Girdham SC (Respondent)
Solicitors:
Legal Aid of NSW…

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AGLC
AB v R [2014] NSWCCA 339
Case
[2014] NSWCCA 339
Decision Date

CaseChat Overview and Summary

In the case of AB v R, the appellant, AB, sought an appeal against the severity of the sentence imposed by the court. The dispute arose from the trial in which AB was convicted of murder and other related offences. The matter was heard by the Court of Criminal Appeal in New South Wales. The appellant argued that the sentence was excessively harsh when compared to the sentence given to a co-offender who was charged with additional offences. Furthermore, AB contended that there were errors in the trial judge's findings regarding the intent to torture the victim and the assessment of the objective seriousness of the murder.

The court was required to determine whether it had the authority to intervene in the sentencing matter, considering the principles set out in the Criminal Appeal Act 1912 (NSW) and relevant case law. The court also needed to assess if there was an error in the trial judge's findings regarding the appellant's intent to torture the victim and the objective seriousness of the murder. Moreover, the court had to examine whether there was a legitimate sense of grievance when the appellant's sentence was compared to that of the co-offender. Finally, the court was required to consider if there was an error in not allowing a discount for the guilty plea.

The court found that it had the jurisdiction to review the findings of fact and to intervene in the sentencing matter. The court held that there was no error in the trial judge's findings regarding the intent to torture the victim and the objective seriousness of the murder. The court determined that the frenzied nature of the attack did not preclude the intent to torture. Furthermore, the court held that there was no legitimate sense of grievance when comparing the appellant's sentence to that of the co-offender, given the additional charges against the co-offender. Lastly, the court found that there was no error in not allowing a discount for the guilty plea, considering the need to protect the public. Consequently, the appeal was dismissed.

No additional orders were made by the court.

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Background

Background to the litigation

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Evidence Before The Court

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Decision

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