AJB v R

Case [2007] NSWCCA 51 5 March 2007

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: A.J.B. v Regina [2007] NSWCCA 51

FILE NUMBER(S):
2006/2505

HEARING DATE(S): 16/01/2007

JUDGMENT DATE: 5 March 2007

PARTIES:
A.J.B. v Regina

JUDGMENT OF: Adams J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1158

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 17/03/2006

COUNSEL:
J. Girdham - Crown
P. Byrne SC - Applicant

SOLICITORS:
S. Kavanagh - Crown
Alan Segal - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Child sexual assault offences committed 26 years earlier - after complaint in 1982 the applicant sought treatment and did not reoffend - whether sentence excessive according to sentencing practices in 1982 - whether availability of remissions relevant - special circumstances - relevance of practice in 1982 for fixing non-parole period.

LEGISLATION CITED:
Crimes Act 1900 - ss 76 (now repealed), 61E(1)
Crimes (Sentencing Procedure) Act 1999 - s 44
Parole of Prisoners Act 1966
Sentencing Act 1989

CASES CITED:
R v Moon (2000) 117 A Crim R 497
R v MJR (2002) 54 NSWLR 368
R v Baxter (NSWCCA, unreported, 26 May 1994)
R v Maclay (1990) 19 NSWLR 112
R v O'Brien [1984] 2 NSWLR 449
R v Slater [2003] NSWCCA 178
Tatana v R [2006] NSWCCA 398
R v EGC [2005] NSWCCA 392
R v PLV (2001) 51 NSWLR 736
R v Portolesi [1972] 1 NSWLR 105
Power v The Queen (1974) 131 CLR 623
Deakin v The Queen (1984) 58 ALJR 367

DECISION:
Application for leave to appeal is granted and the appeal is allowed. The sentences imposed in the District Court are quashed. In lieu the following sentences are imposed: (a) In respect of Counts 2 to 5 a sentence of imprisonment for 18 months to date from 9 March 2006 with a non-parole period of 9 months to expire on 8 December 2006; (b) In respect of Count 1 and taking into account the matters on the Form 1, a sentence of 2 years and 3 months to date from 9 December 2006 with a non-parole period of 9 months to expire on 8 September 2007 the date upon which the applicant is to be released to parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2505
ADAMS J
HOWIE J
PRICE J
MONDAY 5 MARCH 2007

A.J.B. v REGINA

Judgment

ADAMS J: I agree with the judgment of Howie J and the orders proposed by his Honour.
HOWIE J: The applicant was before the District Court for sentence on five counts of indecent assault to which he had earlier pleaded guilty in the Local Court. In addition he asked the sentencing Judge, Berman DCJ, (the Judge) to take into account four other offences of a similar nature on a Form 1. The applicant was sentenced on 17 March 2006 to an overall term of imprisonment of 4 years with a non-parole period of 3 years. The applicant is eligible to be released to parole on 8 March 2009. He seeks leave…

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 AJB v R

Details

AGLC: AJB v R [2007] NSWCCA 51
Case: [2007] NSWCCA 51
Decision Date: 5 March 2007

CaseChat Overview and Summary

The case of AJB v R involved the applicant, AJB, who appealed against the severity of his sentence for child sexual assault offences that were committed 26 years prior. AJB had sought treatment following a complaint in 1982 and subsequently did not reoffend. The appeal centred on whether the sentence imposed was excessive when considered against the sentencing practices in 1982, the year of the offence. Additionally, the availability of remissions and the relevance of 1982 practices in fixing the non-parole period were also in question.

The court was tasked with determining whether the sentence met the criteria for being considered excessive. This involved a retrospective analysis of the sentencing practices from 1982 and comparing them with contemporary standards. The court also had to consider the impact of remissions on the overall sentence and whether these should be factored into the assessment of its severity. Furthermore, the court needed to evaluate if the special circumstances surrounding the case warranted a re-evaluation of the non-parole period based on practices that were in place in 1982.

The court found that the sentence was indeed excessive given the sentencing practices of 1982. It held that the availability of remissions should be considered in assessing the severity of the sentence. The special circumstances, including AJB’s subsequent treatment and lack of reoffending, were deemed significant. The court ruled that the practices in 1982 were relevant in determining the non-parole period, leading to a reduction in the sentence. Consequently, the appeal was upheld, and the sentence was adjusted accordingly.

The court ordered that the applicant’s sentence be reviewed and reduced to reflect the sentencing practices of 1982, taking into account the availability of remissions and the special circumstances of the case. This decision underscores the importance of considering historical sentencing practices in determining the appropriateness of a sentence, especially in cases with a significant passage of time since the offence.

Orders