Abel v R - [2020] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Abel v R [2020] NSWCCA 82
Hearing dates: 4 March 2020
Decision date: 01 May 2020
Before: Macfarlan JA at [1];
R A Hulme J at [2];
Button J at [6];
Decision:
(1) Leave to appeal against sentence refused.

Catchwords: CRIME – appeals – appeal against sentence – unorthodox procedural history – where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) originally precluded the making of an intensive correction order (ICO) – Form 1 “withdrawn” – ICO ultimately imposed –whether judge erred in failing to find good prospects of rehabilitation and unlikelihood of reoffending – whether error made in assessment of the objective gravity of offences – whether sentence featuring ICO was manifestly excessive – analysis of aspects of procedure adopted
Legislation Cited: Crimes Act 1900 (NSW), s 193(C)(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 68
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cross v R [2019] NSWCCA 280
R v Pullen [2018] NSWCCA 264
R v Qi [2019] NSWCCA 73
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Jacob Abel (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
A McGrath (Respondent)
Solicitors:
Kings Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/370086
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 May 2019

Before:

Delaney ADCJ

File Number(s):

2017/370086

Judgment

MACFARLAN JA: I agree with Button J.
R A HULME J: I agree with Button J. I specifically endorse the four comments his Honour makes at the end of his judgment. I wish to add to what has been said about the legislation concerning intensive correction orders (“ICO”).
This case is concerned with the anomaly that an ICO is available for a sentence between 2 and 3 years if an aggregate sentence is imposed but not if there is a sentence for a single offence and the other offence is on a Form 1.
There is another anomaly. If a sentence between 2 and 3 years is imposed, an ICO may be made if it is an aggregate sentence. An ICO cannot be made if there is a total effective sentence in that range but one of the individual sentences exceeds 2 years.
That is the effect of the construction of s 68 according to R v Pullen [2018] NSWCCA 264 at [83]. The anomalous effect of that construction was exposed in Cross v R [2019] NSWCCA 280 where concurrent sentences of 2 years 6 months were said not to be eligible for an ICO, but if the primary judge had imposed an aggregate sentence, an ICO would have been an available option.
BUTTON J:

Introduction

On 29 May 2019, Mr Jacob Abel (the applicant) was sentenced by his Honour Acting Judge Delaney…

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 Abel v R

Details

AGLC: Abel v The Queen [2020] NSWCCA 82
Case: [2020] NSWCCA 82
Decision Date: 01 May 2020

CaseChat Overview and Summary

The case of Abel v R involves an appeal by the defendant against the sentence imposed by a lower court. The defendant, Abel, was found guilty of several offences and was ultimately sentenced to an intensive correction order (ICO) in addition to other penalties. The case has an unusual procedural background, as the initial sentencing proceedings precluded the imposition of an ICO due to a provision in the Crimes (Sentencing Procedure) Act 1999 (NSW). However, after a form was withdrawn, an ICO was imposed, leading Abel to challenge the sentence on several grounds.

The primary legal issues before the court were whether the trial judge erred in failing to find good prospects of rehabilitation and unlikelihood of reoffending, whether the assessment of the objective gravity of the offences was incorrect, and if the sentence featuring the ICO was manifestly excessive. Abel argued that the trial judge did not adequately consider his prospects of rehabilitation and the objective gravity of his offences. Additionally, Abel contended that the sentence was excessive given the circumstances of the case and the procedural history.

The court examined the trial judge's sentencing remarks and found that there was no error in the assessment of Abel's prospects of rehabilitation and the objective gravity of his offences. The court held that the trial judge appropriately considered the relevant factors and provided adequate reasons for the sentence imposed. Furthermore, the court found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offences and the need for general deterrence. The procedural history of the case, including the withdrawal of the form, did not affect the validity of the sentence. The appeal was dismissed, and the original sentence was upheld.

No additional final orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders