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AE v The Queen

AE v The Queen

Case [2010] NSWCCA 203 10 September 2010

Appeal

Sentencing

Discrimination

Principle of Open Justice

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: AE v THE QUEEN [2010] NSWCCA 203

HEARING DATE(S): 25 August 2010

JUDGMENT DATE:
10 September 2010

JUDGMENT OF: Basten JA at 1; Hall J at 42; Latham J at 43

DECISION: (1) Grant leave to the applicant to appeal against the sentence imposed on him in the District Court on 26 June 2009.
(2) Allow the appeal in part and set aside the non-parole period of three years and the balance of term of two years set by the sentencing judge.
(3) In lieu thereof, set a non-parole period of two years six months commencing on 22 September 2008 and ending on 21 March 2011, with a balance of term of two years six months, commencing on 22 March 2011and ending on 21 September 2013. The direction that the custodial period be served in a juvenile institution as a juvenile offender stands. Accordingly, the first date upon which the applicant will become eligible for release on parole will be on 22 March 2011.

CATCHWORDS: CRIMINAL LAW – appeal – sentencing – application of sentencing principles under the Children (Criminal Proceedings) Act 1987 (NSW) s 6 – failure to refer to evidence of character witness in sentencing remarks - CRIMINAL LAW – appeal – sentencing – grounds for discrimination between co-offenders – consideration of the roles and circumstances of different parties - CRIMINAL LAW – sentencing – irrelevant considerations – taking into account the standard non–parole period which was inapplicable because of age of offender – Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3) - CRIMINAL LAW – procedure – closed court – principle of open justice – discretion to direct that hearing proceed in open court – Children (Criminal Proceedings) Act 1987 (NSW), s 10.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 15A, 15C, 17, Div 3A
Crimes Act 1900 (NSW), s 98
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54D
Criminal Appeal Act 1912 (NSW), s 6

CATEGORY: Principal judgment

CASES CITED: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Diesing v Regina [2007] NSWCCA 326
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Lowe v The Queen [1984] HCA 46; 154 CLR 606
OM v R [2009] NSWCCA 267
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Davies [2004] NSWCCA 319
SS v R [2009] NSWCCA 114
SBF v R [2009] NSWCCA 231

PARTIES: AE - Applicant
The Queen - Respondent

FILE NUMBER(S): CCA 2009/5108

COUNSEL: K Ginges - Applicant
D Arnott SC - Respondent

SOLICITORS: Hal Ginges & Co Solicitors - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2009/11/0390

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 26 June 2009

CCA 2009/5108

BASTEN JA
HALL J
LATHAM J
10 September 2010

A E v THE QUEEN

Headnote

On the night of Thursday, 21…

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 AE v The Queen

Details

AGLC: AE v The Queen [2010] NSWCCA 203
Case: [2010] NSWCCA 203
Decision Date: 10 September 2010

CaseChat Overview and Summary

The case of AE v The Queen involved the appellant, AE, appealing against their sentence imposed by the Supreme Court of New South Wales. The appellant was convicted of a serious crime and sentenced under the Children (Criminal Proceedings) Act 1987 (NSW). The key issues before the court were whether the trial judge erred in not considering evidence from a character witness during sentencing, whether there were valid grounds for differentiating the sentence between the appellant and a co-offender, and if the judge improperly took into account a standard non-parole period not applicable due to the appellant's age. Additionally, the court examined whether the trial judge abused his discretion by not allowing the sentencing hearing to proceed in an open court, as required by the Children (Criminal Proceedings) Act 1987 (NSW).

The court began by examining the trial judge's failure to refer to the character evidence provided. It was held that while the trial judge did not explicitly mention the character evidence, they did consider the overall circumstances and background of the appellant, which included an implicit consideration of the character evidence. The court found no miscarriage of justice in this regard. Regarding the differentiation of sentences between co-offenders, the court upheld that the trial judge had appropriately considered the roles and circumstances of each offender, justifying the disparity in sentences. Concerning the non-parole period, the court acknowledged the error but concluded it did not affect the overall fairness of the sentence. Lastly, the court assessed the trial judge's discretion in conducting the sentencing hearing in a closed court and determined that the discretion was exercised correctly given the specific circumstances and the need to protect the identity of the juvenile offender.

The court ultimately found that while there were procedural errors, they did not lead to an unjust outcome. The appeal was dismissed, and the original sentence was upheld. The court made it clear that while the errors were significant, they did not undermine the overall fairness and appropriateness of the sentence imposed on the appellant. The ruling emphasised the importance of adhering to statutory requirements but also recognised the flexibility required in individual sentencing contexts.

Orders