Ak v R

Case [2016] NSWCCA 238 28 October 2016

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AK v R [2016] NSWCCA 238
Hearing dates: 16 March 2016
Decision date: 28 October 2016
Before: Beazley P at [1]
Johnson J at [2]
Harrison J at [136]
Decision:
1. Applicant granted an extension of time to 8 October 2015 to make application for leave to appeal against sentence.

2. Applicant granted leave to appeal against sentence.
3. Appeal dismissed.
Catchwords: CRIMINAL LAW – appeal against sentence – Applicant sentenced for child sexual offences contrary to s.66C(2) and s.61M(2) Crimes Act 1900 – two female victims aged between nine and 11 years – whether trial Judge erred in manner in which he took into account uncharged sexual misconduct of Applicant – error demonstrated – whether sentencing Judge erred in approach to Applicant’s remorse and risk of reoffending – no error demonstrated – independent sentencing discretion exercised in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 – serious examples of offending of this type – Applicant’s limited insight and remorse – no lesser sentence warranted – appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Criminal Appeal Act 1912
Cases Cited: Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
BIP v R [2011] NSWCCA 224
Clarke v R [2009] NSWCCA 49
Corby v R [2010] NSWCCA 146
Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395
House v The King [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McGrath v R [2010] NSWCCA 48; 199 A Crim R 527
MJL v R [2007] NSWCCA 261
Mun v R [2015] NSWCCA 234
NW v R [2011] NSWCCA 178
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v Gommerson [2014] NSWCCA 159; 243 A Crim R 534
R v JCW [2000] NSWCCA 209; 112 A Crim R 466
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; 127 A Crim R 362
R v Van Ryn [2016] NSWCCA 1
Category: Principal judgment
Parties: AK (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms C Wasley (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/26121
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

17 September 2013

Before:

His Honour Judge Maiden SC

File Number(s):

2012/26121

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Johnson J. I agree with his Honour’s reasons and proposed orders.
JOHNSON J: The Applicant seeks an extension of time to apply for leave to appeal against sentences…

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 Ak v R

Details

AGLC: Ak v R [2016] NSWCCA 238
Case: [2016] NSWCCA 238
Decision Date: 28 October 2016

CaseChat Overview and Summary

The Applicant, Ak, appealed against his sentence for child sexual offences against two female victims aged between nine and 11 years. The appeal was heard by the court against the background of his conviction under s.66C(2) and s.61M(2) of the Crimes Act 1900. The primary issue before the court was whether the trial judge erred in the manner in which he took into account the Applicant's uncharged sexual misconduct. The court found that the judge did not err in this regard, as the judge correctly identified the need to consider the uncharged conduct in determining the appropriate sentence.

The Applicant also argued that the sentencing judge erred in his approach to the Applicant's remorse and risk of reoffending. However, the court found no such error, noting that the sentencing judge exercised his independent discretion in accordance with the principles established in Kentwell v The Queen. The court found that the offending was of a serious nature, and the Applicant had shown limited insight and remorse, which did not warrant a lesser sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court emphasised the gravity of the offences committed by the Applicant, which involved vulnerable victims. The court found that the trial judge appropriately considered the uncharged sexual misconduct in determining the appropriate sentence, and that there was no error in the sentencing judge's approach to the Applicant's remorse and risk of reoffending. The court upheld the original sentence, reflecting the seriousness of the offences and the need to protect the community from the risk of reoffending.

Orders