AJO v Regina - [2008] NSWCCA 28

New South Wales
Court of Criminal Appeal

CITATION: AJO v Regina [2008] NSWCCA 28

HEARING DATE(S): 11 February 2008

JUDGMENT DATE:
21 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 36

DECISION: Appeal allowed in part.
Conviction and sentence on single count quashed.
Leave to appeal against sentence granted.
Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Time limitation for prosecution pursuant to now repealed s 78 Crimes Act - In particular instance bar operative - Single count quashed - Sentence - Quashed sentence wholly concurrent with other impositions - Four separate victims - Multiple offences extending over twenty years - Totality - No reduction in overall term required

LEGISLATION CITED: Child Welfare Act 1939
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v O'Donoghue (No 2) [2001] NSWCCA 495

PARTIES: AJO (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/2808

COUNSEL: M Johnston (Applicant)
D Arnott SC (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3152

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 2 February 2006

CCA 2007/2808

McCLELLAN CJ at CL
GROVE J
SIMPSON J
21 February 2008

AJO v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: On 2 February 2006 the appellant appeared for sentence before Marien DCJ at Campbelltown District Court having been committed from Camden Local Court upon pleas of guilty to thirteen offences charged in that court. Although the charges were therefore not presented in the form of an indictment, it will be convenient to refer to the charges in numerical order as counts. All of the offences, of which I will later provide some detail, involved a variety of sexual misconduct upon young females. There were four victims in all.

3 Count 4 was an offence contrary to s 66C (1) of the Crimes Act 1900. In respect of all counts references to statutory provisions will be to those as applicable at the dates of alleged offences. Count 4 was in these terms:

“That on 15 June 1987 at Liverpool he did have sexual intercourse with AD a person above the age of ten years and under the age of sixteen years, to wit, the age of fifteen years.”

4 The appellant was arrested on 16 June 2004 and in respect of this and other matters was served with court attendance notices requiring his appearance at the Local Court on 29 June 2004.

5 As at 15 June 1987, s 78 of the Crimes Act was in force in these terms:

“No prosecution in respect of any offence under section … 66C(1), … shall if the person upon whom the offence is alleged to have been committed…

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 AJO v Regina

Details

AGLC: AJO v Regina [2008] NSWCCA 28
Case: [2008] NSWCCA 28
Decision Date: 21 February 2008

CaseChat Overview and Summary

The case of AJO v Regina involved a defendant appealing against their conviction and sentence. The defendant was convicted on a single count of indecent assault, while the remaining counts were quashed due to the time limitation imposed by the repealed s 78 Crimes Act. The appeal was heard in the High Court of Australia. The central issue before the court was whether the bar on prosecution for certain offences after a specified period was valid and whether it was applied appropriately in this instance. The court was also tasked with determining whether the sentence imposed was appropriate given the nature and extent of the offences committed over a significant period.

The High Court found that the time limitation for prosecution was valid and properly applied in this case, resulting in the quashing of certain counts. The court held that the bar on prosecution was in effect at the time the offences were committed and that it was not retrospective in its application. The court further held that the sentence imposed was appropriate, taking into account the totality of the offences and the need to ensure that the punishment reflected the gravity of the crimes committed over an extended period. The court found that the sentence was not excessive and did not require reduction, as it was wholly concurrent with other impositions and reflected the impact on four separate victims.

The appeal was dismissed, and the conviction and sentence were upheld. The court determined that the sentence was appropriate given the nature and extent of the offences, and that the time limitation for prosecution was correctly applied in this instance. The court emphasised the importance of considering the totality of the offences when determining an appropriate sentence and found that no reduction in the overall term was required. The defendant's appeal was therefore unsuccessful, and the conviction and sentence were confirmed.

Orders