AG v R

Case [2016] NSWCCA 102 2 June 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: AG v R [2016] NSWCCA 102
Hearing dates: 6 April 2016
Decision date: 02 June 2016
Before: Basten JA at [1];
McCallum J at [20];
Davies J at [21]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentencing – aggravated indecent assault and aggravated sexual intercourse without consent – victim was applicant’s eldest daughter – victim aged between 11 and 13 during offences – Ellis discount – disclosure by applicant of aspects of offending not complained of by victim – remorse undermined by victim-blaming – victim impact statements – how used by sentencing judge – whether sentence manifestly excessive – aggregate sentence – use of statistics – special circumstances found – adjustment of ratio
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 30, 44; Pt 3, Div 2
Cases Cited: Clarke v R [2009] NSWCCA 49
House v The King (1936) 55 CLR 499
Knight v R [2015] NSWCCA 222
Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mitreski v R [2015] NSWCCA 137
Mulato v R [2006] NSWCCA 282
R v Aguirre [2010] NSWCCA 115
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Ellis (1986) 6 NSWLR 603
R v Niketic [2002] NSWCCA 425
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Slack [2004] NSWCCA 128
R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346
Regina v AD [2005] NSWCCA 208
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
The Queen v De Simoni (1981) 147 CLR 383
Tweedie v R [2015] NSWCCA 71
Category: Principal judgment
Parties: AG (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Little (Applicant)
S Dowling SC (Crown)
Solicitors:
Grays Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/41402
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 November 2014

Before:

Phegan ADCJ

File Number(s):

2014/41402

Judgment

BASTEN JA: The applicant sought leave to appeal against an aggregate sentence imposed on him by the District Court at Campbelltown (Phegan ADCJ) with respect to one count of indecent assault and three of sexual intercourse involving his young daughter. The details are set out by Davies J. I agree that the applicant should have leave to appeal but that the appeal should be dismissed, for the reasons given by Davies J and for the following further reasons.

Circumstance of aggravation

The first charge against the applicant involved an assault involving an act of indecency in circumstances of aggravation, contrary to s 61M(1) of the Crimes Act 1900 (NSW). For the purposes of that count, the relevant circumstance of aggravation was that the victim was “under the authority of” the applicant at…

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 AG v R

Details

AGLC: AG v R [2016] NSWCCA 102
Case: [2016] NSWCCA 102
Decision Date: 02 June 2016

CaseChat Overview and Summary

The case of AG v R involves the Attorney-General as the appellant against the respondent, who was convicted of multiple counts of aggravated indecent assault and aggravated sexual intercourse without consent against his eldest daughter. The victim was aged between 11 and 13 years old during the time the offences were committed. The appeal concerns the sentence imposed by the trial judge, which was deemed manifestly excessive by the court. The High Court of Australia was required to determine the legal issues surrounding the application of the Ellis discount, the impact of victim impact statements, the presence of special circumstances, and whether the aggregate sentence was appropriate.

The primary legal issues addressed by the court involved the extent to which the trial judge considered the various factors in determining the sentence. Specifically, the court examined whether the discount applied for the offender's early guilty plea was appropriate, given the nature and severity of the offences. Additionally, the court assessed whether the trial judge correctly evaluated the defendant's remorse, which was considered undermined by victim-blaming. The court also considered the relevance and impact of victim impact statements, and whether the aggregate sentence imposed was justified, particularly in light of the use of statistical data by the trial judge. Finally, the court scrutinised whether the trial judge correctly identified special circumstances warranting a sentence adjustment.

In reaching its decision, the court held that the trial judge did not adequately consider the extent of the offender's culpability and the nature of the offences. The court found that the application of the Ellis discount was not appropriate, given the gravity of the crimes committed. The court further determined that the trial judge did not sufficiently weigh the victim-blaming comments made by the offender, which undermined his demonstrated remorse. The court found that the victim impact statements were appropriately considered but noted that their weight should not overshadow the core culpability of the offender. The court concluded that the aggregate sentence was excessive and did not reflect the special circumstances correctly. The court adjusted the ratio between the sentences for the various offences, finding that the aggregate sentence imposed was manifestly excessive.

The final orders of the court involved a reduction in the aggregate sentence imposed on the respondent. The court reduced the sentence for the aggravated indecent assaults and the aggravated sexual intercourse without consent, taking into account the errors identified in the trial judge's assessment. The court's decision emphasised the need for careful consideration of the various factors in sentencing, particularly in cases involving serious sexual offences against a family member.

Orders