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
Counsel: S Odgers SC (Applicant) J A Girdham SC (Respondent) Solicitors: Legal Aid of NSW…
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.
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Details
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.