AJ v R

Case [2023] NSWCCA 158 30 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AJ v R [2023] NSWCCA 158
Hearing dates: 5 April 2023
Decision date: 30 June 2023
Before: Simpson AJA at [1];
Button J at [2];
Hamill J at [68]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal against sentence upheld, and aggregate sentence previously imposed quashed.
(3) The applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, to commence on 2 January 2019 and expire on 1 January 2033, with a non-parole period of 9 years, which will expire on 1 January 2028.
(4) The first date upon which the applicant is eligible for possible release to parole is 1 January 2028.

Catchwords:
CRIME – appeal – appeal against sentence – multiple child sexual offences – where two child victims the natural children of the applicant – offending found to be at or below the mid-range of objective seriousness – whether starting points of indicative sentences too close to maximum penalty – whether aggregate sentence manifestly excessive – grounds of appeal directed at aggregate term on the basis that indicative terms were erroneously imposed not prohibited – starting points only two months short of the maximum penalty for two counts not appropriate given the applicant’s objective and subjective case – error in imposition of indicatives sentences found to have influenced the aggregate term imposed – appeal allowed – sentence imposed at first instance set aside – resentence

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BT v R [2010] NSWCCA 267
Davidson v R [2022] NSWCCA 153
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibbs v The Queen (1987) 163 CLR 447
JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kerr v R [2016] NSWCCA 218
PG v R [2017] NSWCCA 179
R v Rae [2013] NSWCCA 9
R v Thomson; R v Houlton (2000) NSWLR 383; [2000] NSWCCA 309
Sharma v R [2022] NSWCCA 190
Truong v R [2013] NSWCCA 36
Young v R [2021] NSWCCA 163

Category: Principal judgment
Parties: AJ (Appellant)
Rex (Respondent)
Representation:
Counsel:
D Marr (Appellant)
E Wilkins SC (Respondent)
Solicitors:
Matthew Lorkin Solicitor (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/02023
Publication restriction: Pseudonyms adopted for the names of child sexual assault victims and related persons.
Decision under appeal

Court or tribunal:

District Court, Sydney

Jurisdiction:

Criminal

Date of Decision:

27 August 2020

Before:

Shead SC DCJ

File Number(s):

2019/02023

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 August 2020, AJ (the applicant) (a pseudonym) was sentenced in the District Court, following a late plea of guilty, for eight offences involving child sexual abuse against the applicant’s two children. Six of the offences were dealt with substantively. These included three counts of indecent assault against a child under the age of 16, contrary to s 61M(2) of the Crimes Act

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 AJ v R

Details

AGLC: AJ v R [2023] NSWCCA 158
Case: [2023] NSWCCA 158
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the appeal of AJ against R, the respondent was convicted of multiple child sexual offences involving two child victims who were the natural children of the applicant. The court was tasked with determining whether the starting points of the indicative sentences were too close to the maximum penalty and whether the aggregate sentence was manifestly excessive. The appeal focused on the aggregate term on the basis that the indicative sentences were erroneously imposed.

The court examined whether the starting points of the indicative sentences were appropriately determined, considering they were only two months short of the maximum penalty for two counts. It also assessed whether the aggregate sentence was manifestly excessive, given the applicant's objective and subjective circumstances. The appeal argued that the starting points were inappropriate, given the applicant’s case, and this error influenced the aggregate term imposed. The court found that there was indeed an error in the imposition of the indicative sentences that had a bearing on the aggregate term.

The appeal was allowed, and the sentence imposed at first instance was set aside. The court found that the error in the imposition of the indicative sentences had influenced the aggregate term. As a result, the aggregate sentence was manifestly excessive and needed to be resentenced. The appeal was successful in establishing that the aggregate term should be reconsidered in light of the errors identified.

Orders