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-sentencedLegislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) ActCases 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 460Category: Principal judgment Parties: AG - Applicant
Regina - CrownRepresentation - Counsel: Ms B Rigg - Applicant
Ms T Smith - Crown- Solicitors: Legal Aid New South Wales - Applicant
S Kavanagh – Solicitor for Public Prosecutions - CrownFile Number(s): FILLIN "FILE NO"\d "" \* MERGEFORMAT 2009 / 2372007 Decision Under Appeal - Before: Frearson DCJ
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- AGLC
- AG v The Queen [2013] NSWCCA 264
- Case
- [2013] NSWCCA 264
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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