AGF v The Queen - [2016] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AGF v R [2016] NSWCCA 236
Hearing dates: 7 October 2016
Decision date: 21 October 2016
Before: Meagher JA at [1];
Harrison J at [2];
R A Hulme J at [3]
Decision:
1. Time to file Notice of Application for Leave to Appeal extended to 1 June 2016.
2. Leave to appeal granted and appeal allowed.
3. Sentences imposed in the District Court on 6 November 2009 quashed and the following sentences imposed:
Count 1 (2007/16340-036): imprisonment for a fixed term of 11 months commencing on 16 June 2008.
Count 4 (2007/16340-038): imprisonment for a fixed term of imprisonment of 2 years 8 months commencing on 16 May 2009.
Count 5 (2007/16340-005): imprisonment for a fixed term of 11 months commencing 16 May 2009.
Counts 6 and 7 (2007/16340-039 & 040): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 April 2010.
Counts 8 and 9 (2007/16340-041 & 042): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 March 2011.
Count 10 (2007/16340-043): imprisonment for a fixed term of 3 years 7 months commencing 16 March 2011.
Count 11 (2007/16340-016): imprisonment for a fixed term of 1 year 4 months commencing 16 February 2012.
Count 13 (2007/16340-019) (and taking into account the Form 1 offence): imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence is to commence 16 December 2012. The non-parole period will expire on 15 June 2017 at which time the applicant will become eligible for release on parole. The total term will expire on 15 December 2021.

Catchwords: CRIMINAL LAW – appeal against sentence – child sexual assault – significant delay – applicant sentenced on the basis that he had a prior conviction for child sexual assault – where prior conviction quashed on appeal after sentencing for present offences – prior conviction had no impact on sentence – judge not made aware of applicant’s assistance to authorities – new evidence of assistance received – assistance worthy of reduction in sentence – applicant re-sentenced – appeal allowed
Legislation Cited: Crimes Act 1900 (NSW) ss 61, 61M(1), 61O(1), 66C(2), 66D, 61J
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23, 44
Criminal Code (Cth) s 474.19
Cases Cited: Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Many v R (1990) 51 A Crim R 54
R v Cartwright (1989) 17 NSWLR 243
Category: Principal judgment
Parties: AGF (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Boulten SC (Applicant)
Ms B Baker (Crown)
Solicitors:
William O'Brien & Ross Hudson Solicitors
Solicitor for Public Prosecutions

File Number(s): 2007/16340
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 November 2009

Judgment

MEAGHER JA: I…

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 AGF v The Queen

Details

AGLC: AGF v The Queen [2016] NSWCCA 236
Case: [2016] NSWCCA 236
Decision Date: 21 October 2016

CaseChat Overview and Summary

The matter before the court involved an appeal against the sentence imposed by the sentencing judge on the applicant, who had been convicted of child sexual assault. The applicant had previously been convicted of similar offences and was sentenced on the basis of that prior conviction. However, the prior conviction was later quashed on appeal, leading to the applicant's argument that the sentence should be reconsidered. The appeal was heard by the court which considered whether the sentence was appropriate in light of the quashing of the prior conviction and whether the applicant's assistance to authorities should have been taken into account when sentencing.

The court was required to determine whether the sentence was appropriate given the quashing of the prior conviction and whether the applicant's assistance to authorities should have been considered at the time of sentencing. The court also needed to decide whether the new evidence of the applicant's assistance was sufficient to warrant a reduction in sentence and whether the applicant's delay in bringing the appeal was significant enough to affect the outcome of the appeal.

The court found that the sentence was appropriate in light of the quashing of the prior conviction, as the prior conviction had no impact on the sentence. However, the court also found that the applicant's assistance to authorities was worthy of a reduction in sentence. The court noted that the sentencing judge was not made aware of the applicant's assistance at the time of sentencing, and that the new evidence of the applicant's assistance was sufficient to warrant a reduction in sentence. The court also found that the delay in bringing the appeal was not significant enough to affect the outcome of the appeal. As a result, the court allowed the appeal and re-sentenced the applicant.

Orders