AM v R

Case [2020] NSWCCA 101 21 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AM v R [2020] NSWCCA 101
Hearing dates: 6 May 2020
Date of orders: 21 May 2020
Decision date: 21 May 2020
Before: R A Hulme J at [1]
Fagan J at [2]
Hidden AJ at [3]
Decision:
1.   Extend the time for filing this application to 11 December 2019.
2.   Leave to appeal granted.
3.   Appeal allowed.
4.   Sentence in the District Court quashed.
5.   Applicant resentenced to an aggregate sentence of 6 years and 6 months, commencing on 6 October 2017 and expiring on 5 April 2024, with a non-parole period of 4 years, expiring on 5 October 2021.
6.   The applicant will be eligible for release on parole on 6 October 2021.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed by the applicant upon his 10 year old half-sister – aggregate sentence – finding of special circumstances but a minimal departure from statutory proportion – no explanation – error found – applicant resentenced
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1990
Cases Cited: CM v R [2013] NSWCCA 341
Jonson v R [2016] NSWCCA 286, (2016) 263 A Crim R 268
MD v R [2015] NSWCCA 37
R v AA [2017] NSWCCA 84
R v Ellis (1986) 6 NSWLR 603
Sefian v R [2018] NSWCCA 194
Category: Principal judgment
Parties: AM (Applicant)
Regina (Crown)
Representation:
Counsel:
K Averre (Applicant)
C Curtis (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2016/76835
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Not applicable

Date of Decision:

11 April 2018

Before:

Delaney A/DCJ

File Number(s):

2016/76835

Judgment

R A HULME J: I agree with Hidden AJ.
FAGAN J: In the course of the hearing of this application I agreed with the other members of the Court that ground 1 should be upheld. I did so having regard to the principles and authorities now referred to by Hidden AJ. In my view the learned sentencing judge did not give meaningful effect to his finding of special circumstances, nor did the judge provide reasons for departing only minimally from the statutory ratio, in a case where the finding warranted a tangible and practical adjustment. I concur in Hidden AJ’s reasoning with respect to this. I also agree with the orders his Honour proposes for the re-sentence of the applicant and with his Honour’s assessment of the relevant sentencing factors.
HIDDEN AJ: The applicant was committed to the District Court for sentence on a series of sexual offences committed against his half-sister. There were five principal offences, together with further offences on two Form 1 documents.
The principal offences were:

two offences of sexual intercourse with a person aged between 10 and 14 years (sequences 17 and 18): s 66C(1) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 16…

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 AM v R

Details

AGLC: Am v The Queen [2020] NSWCCA 101
Case: [2020] NSWCCA 101
Decision Date: 21 May 2020

CaseChat Overview and Summary

The case of AM v R involved a defendant, AM, who was convicted of multiple sexual offences against his 10-year-old half-sister. AM appealed against his sentence, arguing it was disproportionate. The court had to decide whether the sentence imposed by the primary judge was appropriate and if there were any errors in the sentencing process. Specifically, the court needed to determine if the special circumstances found by the primary judge warranted a departure from the statutory minimum sentences, and if the departure was justified and properly explained.

The court examined the primary judge's reasons for the sentence, focusing on whether the special circumstances identified were sufficient to justify a departure from the statutory minimum sentences. The court found that while the special circumstances were acknowledged, there was no adequate explanation as to why the departure from the statutory proportion was minimal. The court held that the primary judge erred in not providing a clear and detailed rationale for the minimal departure. This lack of explanation was significant as it undermined the overall sentencing process, leading to an imbalance between the severity of the offences and the punishment imposed.

As a result of this error, the court quashed the sentence and ordered a re-sentencing hearing. The court emphasised the importance of providing a clear and reasoned justification for any departure from statutory minimum sentences, particularly when special circumstances are invoked. The final orders of the court were to remit the matter to the original sentencing court for a re-sentencing hearing, ensuring that the new sentence appropriately reflects the gravity of the offences committed.

Orders