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AB v The Queen

AB v The Queen

Case [2020] NSWCCA 170 22 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: AB v R [2020] NSWCCA 170
Hearing dates: 10 July 2020
Date of orders: 22 July 2020
Decision date: 22 July 2020
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to four counts of aggravated indecent assault of a person under 16 and one count of inciting a person under 16 to commit an act of indecency – Grounds of appeal drafted by self-represented applicant – Whether sentencing judge erred in assessing special circumstances – Whether sentencing judge intended a modest reduction in the non-parole period – Whether sentencing judge erred in assessing the applicant’s prospects of rehabilitation – Whether sentence was manifestly excessive – No error established – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Bell v R [2019] NSWCCA 271
Caristo v R [2011] NSWCCA 7
Gumbleton v R [2017] NSWCCA 314
Jiang v R [2010] NSWCCA 277
Maglis v R [2010] NSWCCA 247
Park v R [2020] NSWCCA 90
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Goodwin (1990) 51 A Crim R 328

Category: Principal judgment
Parties: AB – Applicant
Regina – Respondent
Representation:
Counsel:
Applicant – Self-represented
M Kumar – Crown
Solicitors:
C Hyland Solicitor for Public Prosecutions - Crown

File Number(s): 2018/158916
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 May 2019

Before:

Her Honour Judge Herbert

Judgment

HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.
ADAMSON J: I agree with Bellew J.
BELLEW J:

INTRODUCTION

On 11 April 2019, AB (the applicant) appeared before her Honour Judge Herbert in the District Court of NSW and pleaded guilty to the following offences:

Between 1 January 1996 and 30 December 1996, at Lismore Heights in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 11 or 12 years (Count 1).

Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 2).

Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC),…

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 The Queen

Details

AGLC: AB v The Queen [2020] NSWCCA 170
Case: [2020] NSWCCA 170
Decision Date: 22 July 2020

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence handed down to the applicant, AB, who had pleaded guilty to four counts of aggravated indecent assault of a person under 16 and one count of inciting a person under 16 to commit an act of indecency. The sentencing judge imposed a term of imprisonment, and the applicant, self-represented, appealed the sentence on several grounds. The appeal was heard by the court, which was required to determine whether the sentencing judge had erred in assessing the special circumstances of the case, whether the judge intended a modest reduction in the non-parole period, whether the judge had erred in assessing the applicant's prospects of rehabilitation, and whether the sentence was manifestly excessive.

The court examined the grounds of appeal and the submissions made by the applicant. It found that the sentencing judge had carefully considered the special circumstances of the case and the factors relevant to sentencing, including the nature and circumstances of the offences, the applicant's criminal history, and the impact of the offences on the victim. The court concluded that there was no error in the sentencing judge's assessment of the special circumstances or the non-parole period. The court also found that the sentencing judge had appropriately assessed the applicant's prospects of rehabilitation, taking into account the applicant's age, background, and potential for rehabilitation. The court was satisfied that the sentence imposed was not manifestly excessive, and that the sentencing judge had exercised his or her discretion in a manner consistent with the relevant principles and authorities.

The court granted the applicant leave to appeal but ultimately dismissed the appeal, finding that no error had been established. The court acknowledged the seriousness of the offences committed by the applicant and the impact they had on the victim, and emphasised the importance of the sentencing judge's role in imposing an appropriate sentence that reflects the gravity of the offences and the principles of justice. The court's decision confirms the importance of a careful and principled approach to sentencing in cases involving serious sexual offences against children.

Orders