AC v R

Case [2016] NSWCCA 107 8 June 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AC v R [2016] NSWCCA 107
Hearing dates: 16 May 2016
Date of orders: 08 June 2016
Decision date: 08 June 2016
Before: Chief Justice T Bathurst at [1]
Schmidt J at [2]
Wilson J at [90]
Decision:
(1) Leave to appeal be allowed.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – leave to appeal against sentence –
– Crimes Act 1900 (NSW) s 66EA offence – whether there was a failure to give weight to the “victim impact statement” – whether there was a failure to take into account prospects of rehabilitation, and likelihood re-offending – whether there should have been a finding of special circumstances – appeal allowed – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: ARS v R [2011] NSWCCA 266
Butters v R [2010] NSWCCA 1
Caristo v R [2011] NSWCCA 7
R v Fidow [2004] NSWCCA 172
Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Cramp [2004] NSWCCA 264
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
R v Hutchinson [1994] 15 Cr App R (S) 134
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Nunn [1996] 2 Cr App R (S) 136
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
R v Roche [1999] 2 Cr App R (S) 105
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Van Hong Pham [2005] NSWCCA 94
Shaw v R [2008] NSWCCA 58
Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48
TS v R [2007] NSWCCA 194
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: AC (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Mr E Balodis (Crown)
Solicitors:
(Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/39283
Publication restriction: Non-publication order re the name of the complainant, the complainant’s father, the offender and the relevant facts (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

6 March 2015

Before:

Sweeney DCJ

File Number(s):

2014/39283

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Schmidt J. I agree with her Honour’s conclusions and with her reasons.
SCHMDIT J: The applicant pleaded guilty to an offence of persistent sexual abuse of a 12 year old girl, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). On 6 March 2015, after a 25% discount for his early plea, Sweeney DCJ sentenced…

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 [2016] NSWCCA 107
Case: [2016] NSWCCA 107
Decision Date: 08 June 2016

CaseChat Overview and Summary

The appeal against sentence was brought by the appellant, AC, against the respondent, the Commonwealth of Australia, in the High Court of Australia. The appellant was convicted of an offence under section 66EA of the Crimes Act 1900 (NSW) and was sentenced to imprisonment. The appellant sought leave to appeal against the sentence imposed, arguing that the primary judge failed to give sufficient weight to the victim impact statement, did not adequately consider the prospects of rehabilitation and the likelihood of re-offending, and did not find special circumstances. The central legal issues before the court were whether the primary judge erred in the sentencing process by not giving appropriate weight to the victim impact statement, failing to consider the prospects of rehabilitation and the likelihood of re-offending, and not finding special circumstances.

The High Court considered the principles of sentencing in the context of the appellant's conviction and sentence. The court noted that while the primary judge did consider the victim impact statement, the weight given to it was insufficient. The court found that the primary judge did not adequately consider the appellant's prospects of rehabilitation and the likelihood of re-offending, which are critical factors in sentencing. Furthermore, the court determined that the primary judge should have found special circumstances, which could have impacted the length of the sentence. The High Court concluded that the errors in the sentencing process warranted the granting of leave to appeal and that the appeal against sentence should be allowed.

The appeal against sentence was allowed, and the matter was remitted to the Court of Criminal Appeal for re-sentencing. The court found that the primary judge's failure to adequately consider the victim impact statement, prospects of rehabilitation, and likelihood of re-offending, as well as the failure to find special circumstances, constituted significant errors in the sentencing process. As a result, the High Court granted the appellant leave to appeal against the sentence and dismissed the appeal against leave to appeal. The case was remitted to the Court of Criminal Appeal for a re-sentencing hearing, taking into account the errors identified by the High Court.

Orders