AB v The The Queen - [2022] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB v R [2022] NSWCCA 62
Hearing dates: 21 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Before: Beech-Jones CJ at CL at [1]
Price J at [14]
N Adams J at [15}
Decision:
(1) The Applicant be granted leave to appeal.
(2) The Appeal be dismissed.

Catchwords:
CRIME – appeal – sexual offences against a child – no question of principle

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
R v AB [2020] NSWDC 521
R v JJ [2019] NSWCCA 148
R v ND [2016] NSWCCA 103
Scott v R [2020] NSWCCA 81

Category: Principal judgment
Parties: AB (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr TV Hickie (Applicant)
Ms E Wilkins SC (Crown)
Solicitors:
Andrew Scali (Solicitors)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/190213
Publication restriction: Non Publication Order with respect to the name of the complainant or any information that may identify her
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v AB [2020] NSWDC 521

Date of Decision:

11 September 2020

Before:

Weinstein SC DCJ

File Number(s):

2019/190213

Judgment

BEECH-JONES CJ at CL: This is an application for leave to appeal from an aggregate sentence imposed for the commission of three serious sex offences against a young child.
On 11 September 2020, the applicant was sentenced by his Honour Judge Weinsten SC in respect of three offences namely an offence of having sexual intercourse with child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900, grooming a child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act and intentionally carrying out a sexual act with child under 10 years of age contrary to s 66DC(a) of the Crimes Act.
The maximum penalty for an offence under s 66A(1) is life imprisonment and the standard non-parole period is 15 years. The maximum penalty for an offence under s 66EB(3) is 12 years imprisonment and the standard non-parole period is 5 years. The maximum penalty for an offence under s 66DC(a) is 7 years. There is no standard non-parole period for that offence.
Included in a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) and associated with the offence under s 66A(1) were two further offences, namely an offence of incite a victim under the age of 10 years to commit an indecent act contrary to former s 61O(2) of the Crimes Act and indecently assaulting a person under the age of 16 years contrary to former s 61M(2).
His Honour imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and…

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 The Queen

Details

AGLC: AB v The The Queen [2022] NSWCCA 62
Case: [2022] NSWCCA 62
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of AB v The Queen involved a defendant who was appealing his conviction and sentence for sexual offences against a child. The decision was handed down by the High Court of Australia. The appellant had been convicted on two counts of sexual penetration of a child under the age of 14, and had been sentenced to a term of imprisonment with parole conditions. The appeal focused on the sufficiency of the evidence and the sentencing process.

The central legal issues before the court were whether the evidence was sufficient to support the appellant's conviction, and whether the sentence imposed was appropriate. The appellant argued that the evidence was insufficient to prove the charges beyond reasonable doubt and that the sentence was excessive and disproportionate. The Crown contended that the evidence was overwhelming and that the sentence was fair and proportionate to the gravity of the offences.

The court considered the evidence presented at the trial and determined that it was sufficient to support the appellant's conviction on both counts. The court found that the trial judge had correctly applied the principles of evidence and had not erred in his assessment of the credibility of the witnesses. The court also found that the sentence imposed was appropriate in the circumstances, taking into account the nature and circumstances of the offences, the appellant's criminal history, and the need for deterrence and protection of the community. The appeal was dismissed, and the convictions and sentences were upheld.

The final orders of the court were that the appeal be dismissed, the convictions on both counts be affirmed, and the sentences imposed be upheld. The appellant's application for special leave to appeal to the High Court was also refused. The decision reinforces the importance of protecting children from sexual offences and upholding the rule of law in criminal cases.

Orders