AC v R

Case [2023] NSWCCA 133 9 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: AC v R [2023] NSWCCA 133
Hearing dates: 19 May 2023
Date of orders: 09 June 2023
Decision date: 09 June 2023
Before: Bell CJ at [1];
Beech-Jones CJ at CL at [109];
Adamson JA at [144];
Ierace J at [145];
Chen J at [147]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed by Colefax SC DCJ on 27 November 2020.
(4)   Resentence the Applicant to an aggregate sentence of 7 years of imprisonment, with a non-parole period of 5 years and 3 months, to date from 4 October 2019.

Catchwords:
SENTENCING – non-parole period – standard non-parole period – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – whether GL v R [2022] NSWCCA 202 should be followed
APPEALS – precedent – departure from previous decisions – circumstances in which Court of Criminal Appeal will depart from its own previous decisions – discussion of principles of restraint outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 – “plainly wrong” and “compelling reasons to depart” – whether conclusion about statutory construction in GL v R [2022] NSWCCA 202 falls within the ambit of the principles in Gett – whether principles in Gett are strictly confined to departure from the ratio decidendi of previous decisions – whether finding of error in sentencing discretion forms part of ratio decidendi in circumstances where appeal is ultimately dismissed because no less severe sentence is warranted in law
STATUTORY INTERPRETATION – amendment and repeal – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – whether inconsistency existed between provisions of the CSPA introduced at different times – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – transitional provisions said to limit the scope of operation of a substantive provision – whether GL v R [2022] NSWCCA 202 should be followed

Legislation Cited:
Crimes (Amendment) Act 1989 (NSW) Sch 1, cl 2
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(i), 25AA, 33, 44, 53A(2)(b), 54A(2), 54B(5), Pt 4 Div 1A, Sch 2
cll 57, 60, 91
Crimes (Sentencing…

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 AC v R

Details

AGLC: AC v R [2023] NSWCCA 133
Case: [2023] NSWCCA 133
Decision Date: 09 June 2023

CaseChat Overview and Summary

AC was appealing against his sentence, imposed by the Supreme Court, for offences committed under section 61M(2) of the Crimes Act 1900 (NSW) prior to 1 January 2008. The primary issue before the Court of Criminal Appeal was the correct standard non-parole period to be applied to such offences, specifically whether the 2018 amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW) had the effect of limiting the retrospective application of the higher standard non-parole period of 8 years. The Court also needed to determine whether the reasoning and conclusion in GL v R [2022] NSWCCA 202 should be followed.

In reaching its decision, the Court examined the principles of statutory interpretation and the constraints of precedent. It considered the statutory language and legislative history, as well as the principles of restraint outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76. The Court concluded that the 2018 amendments did not limit the retrospective application of the higher standard non-parole period, thereby adopting the reasoning in GL v R. The Court held that the principles in Gett do not strictly confine departure from previous decisions to the ratio decidendi, and that a finding of error in sentencing discretion can form part of the ratio decidendi even if the appeal is dismissed.

The Court of Criminal Appeal allowed the appeal, set aside the sentence imposed by the Supreme Court, and ordered the imposition of a new sentence with a non-parole period of 8 years.

Orders