AG v The Queen - [2013] NSWCCA 264

Court of Criminal Appeal

New South Wales

Case Title: AG v R

Medium Neutral Citation: [2013] NSWCCA 264

Hearing Date(s): 16 October 2013

Decision Date: 14 November 2013

Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J at [3]

Decision:
(i)the application for an extension of time in which to seek leave to appeal against sentence is granted;
(ii)leave to appeal against sentence is granted;
(iii)the appeal is allowed;
(iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a fixed term of imprisonment of 5 years, commencing on 17 October 2008, and expiring on 16 October 2013, is imposed;
(v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 6 years imprisonment commencing on 17 October 2010 and expiring on 16 October 2016, with an additional term of 3 years expiring on 16 October 2019, is imposed;
(vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non- parole period of 4 years imprisonment commencing on 17 October 2009, and expiring on 16 October 2013, with an additional term of 12 months expiring on 16 October 2014 is imposed;
(vii)the applicant will be eligible for release on parole on 16 October 2016, and his aggregate sentence will expire on 16 October 2019.

Catchwords: CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - no error made out

CRIMINAL LAW - appeal - application for extension of time - where applicant pleaded guilty to sexual offending committed on daughters - where applicant mentally retarded - where error on the part of the sentencing judge in application of principles pertaining to mentally ill offenders, both in terms of reduction in moral culpability and lessened significance of general deterrence - where delay in bringing appeal explained partly on the basis of erroneous advice having been given to the applicant following sentence - extension of time granted - leave to appeal granted - appeal allowed - sentences quashed - applicant re-sentenced

Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act

Cases Cited: Abdul v R [2013] NSWCCA 247
Aldous v R [2012] NSWCCA 153
Aslett v R [2012] NSWCCA 235
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Essex v R [2013] NSWCCA 11
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R V Mooney (CA (Vic) 21 June 1978 unreported
Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460

Category: Principal judgment

Parties: AG - Applicant
Regina - Crown

Representation

- Counsel: Ms B Rigg - Applicant
Ms T Smith - Crown

- Solicitors: Legal Aid New South Wales - Applicant
S Kavanagh â€“ Solicitor for Public Prosecutions - Crown

File Number(s): FILLIN "FILE NO"\d "" \* MERGEFORMAT 2009 / 2372007

Decision Under Appeal

- Before: Frearson DCJ

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 The Queen

Details

AGLC: AG v The Queen [2013] NSWCCA 264
Case: [2013] NSWCCA 264
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the matter of the Attorney General versus the Queen, the respondent, the court was presented with an appeal against a sentence handed down by the sentencing judge. The appellant, who had pleaded guilty to sexual offences committed against his daughters, sought an extension of time for his appeal, citing a delay due to receiving erroneous legal advice. The appellant also contended that the sentencing judge had erred in applying the principles relating to mentally ill offenders, both in terms of the reduction in moral culpability and the lessened significance of general deterrence.

The primary legal issues that the court was required to decide were whether the appellant had made out a case for an extension of time to bring his appeal and whether the sentencing judge had erred in applying the principles pertaining to mentally ill offenders. The court had to consider whether the appellant's delay in bringing the appeal was justified and whether the sentencing judge had erred in the way he assessed the appellant's moral culpability and the significance of general deterrence. The court also had to consider whether the appellant's intellectual disability was a mitigating factor that warranted a different sentence.

The court found that the appellant had made out a case for an extension of time to bring his appeal, as the delay was partly due to the appellant receiving erroneous legal advice. The court also found that the sentencing judge had erred in applying the principles relating to mentally ill offenders. The court found that the appellant's intellectual disability was a mitigating factor that warranted a different sentence. The court quashed the original sentences and re-sentenced the appellant, taking into account his intellectual disability. The court allowed the appeal and granted leave to appeal.

The final orders of the court were that the appeal be allowed, the sentences be quashed, and the appellant be re-sentenced. The court found that the appellant had made out a case for an extension of time to bring his appeal and that the sentencing judge had erred in applying the principles relating to mentally ill offenders. The court also found that the appellant's intellectual disability was a mitigating factor that warranted a different sentence. The court quashed the original sentences and re-sentenced the appellant, taking into account his intellectual disability.

Orders