AB v R

Case [2014] NSWCCA 31 4 March 2014

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Court of Criminal Appeal

New South Wales

Case Title: AB v R

Medium Neutral Citation: [2014] NSWCCA 31

Hearing Date(s): 4 March 2014

Decision Date: 04 March 2014

Before: Beazley P at [1]
R A Hulme J at [2]
Schmidt J at [71]

Decision:
Leave to appeal against sentence refused

Catchwords: CRIMINAL LAW - appeal against sentence - guilty pleas not necessarily indicative of remorse - "guarded" prospects of rehabilitation - appellate intervention narrowly confined in regards to weight given to remorse and rehabilitation at trial - finding of "special circumstances" for single sentence not applied to overall sentence - aggregate non-parole period reflects criminality of offences - advanced age did not warrant lesser sentence - error in commencement dates for individual sentences immaterial - error in statement of maximum penalty for offence immaterial - leave to appeal refused

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Caristo v R [2011] NSWCCA 7
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
House v The King [1936] HCA 40; 55 CLR 499
Houri v R [2013] NSWCCA 279
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Baker [2000] NSWCCA 85
R v Holyoak (1995) 82 A Crim R 502
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Sutton [2004] NSWCCA 225

Category: Principal judgment

Parties: AB (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr R Webb (Applicant)
Mr R Herps (Crown)

- Solicitors: Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2011/153039

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Arnott SC DCJ

- Date of Decision: 10 October 2012

- Court File Number(s): 2011/153039

JUDGMENT

BEAZLEY P: I agree with the reasons of R A Hulme J.
R A HULME J: This was an application for leave to appeal in respect of a sentence imposed by his Honour Judge Arnott SC in the District Court at Sydney on 10 October 2012. At the conclusion of the hearing of the application on 4 March 2014, the Court made an order refusing leave. The following are my reasons for joining in the making of that order.
The applicant, who is referred to by pseudonym because identifying him would lead to identification of his victims (s 578A Crimes Act 1900 (NSW)), pleaded guilty to a variety of sexual assault and child pornography offences. The table below sets out the details of the offences and the individual sentences that the judge said that he would have imposed if he had not fixed a single aggregate sentence.
There were 15 offences. They involved Sexual intercourse with a person under 10; Aggravated indecent assault; Aggravated incitement of a person under 16 to commit…

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 AB v R

Details

AGLC: AB v R [2014] NSWCCA 31
Case: [2014] NSWCCA 31
Decision Date: 04 March 2014

CaseChat Overview and Summary

In the matter of AB v R, the appellant sought to appeal against the sentence imposed by the trial judge, following his convictions on multiple counts of serious criminal offences. The case was heard in the High Court of Australia. The primary focus of the appeal was the length of the non-parole period and the weight attributed to certain factors by the trial judge during sentencing.

The legal issues before the court included whether the trial judge had appropriately considered the appellant's prospects of rehabilitation and whether the aggregate non-parole period adequately reflected the criminality of the offences. The appellant argued that the trial judge had erred in assessing his remorse and in calculating the non-parole period. The court was required to determine whether the trial judge's assessment of the appellant's prospects of rehabilitation was flawed and if the sentence imposed was manifestly excessive.

The court held that the trial judge had not erred in finding that the appellant's prospects of rehabilitation were "guarded." The court also found that the aggregate non-parole period was commensurate with the gravity of the offences committed. The court emphasised that the assessment of remorse and rehabilitation prospects were matters for the trial judge, and appellate intervention was narrowly confined in such matters. The court rejected the appellant's argument that the finding of "special circumstances" for a single sentence should apply to the overall sentence. The court further found that the appellant's advanced age did not warrant a lesser sentence and that errors in the commencement dates for individual sentences and the maximum penalty statement were immaterial. Consequently, the court refused leave to appeal.

Orders