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AP v The Queen

AP v The Queen

Case [2017] NSWCCA 270 24 November 2017

Sentencing

Appeal

Assessment of Objective Seriousness

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AP v R [2017] NSWCCA 270
Hearing dates: 2 August 2017
Date of orders: 24 November 2017
Decision date: 24 November 2017
Before: Johnson J at [1]
Davies J at [2]
Lonergan J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIME – appeals – sentencing – assessment of objective seriousness – where offence does not carry a standard non-parole period – whether sentencing Judge assessed objective seriousness – where sentencing Judge described the offences as “objectively serious matters” – where issue not taken at first instance – no error demonstrated – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 61M, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 5, 21A, 53A
Cases Cited: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
Charbaji v R [2011] NSWCCA 181
Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
Gal v R [2015] NSWCCA 242
Georgopolous v R [2010] NSWCCA 246
Harris v R [2015] NSWCCA 81
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
R v Campbell [2014] NSWCCA 102
R v Sivell [2009] NSWCCA 286
R v Van Ryn [2016] NSWCCA 1
Sharma v R [2017] NSWCCA 85
Simpson v R [2014] NSWCCA 23
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: AP (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Karim (Applicant)
N J Adams (Crown Respondent)
Solicitors:
J Nashed (Applicant)
Solicitor for Public Prosecutions (Crown Respondent)

File Number(s): 2014/82621
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 April 2016

Before:

M L Williams SC DCJ

File Number(s):

2014/82621

judgment

JOHNSON J: I agree with Lonergan J.
DAVIES J: I agree with Lonergan J.
LONERGAN J: The Applicant, AP, sought leave to appeal against a sentence imposed on him at the Parramatta District Court on 21 April 2016 for three offences in relation to an 11-year-old child. The Applicant is described by the use of initials. This course has been adopted by this Court to protect the identity of the victim as she is his step-granddaughter.

The offences and aggregate sentence

The offences for which the Applicant was sentenced were committed in January 2013 when the victim was staying at the Applicant’s home. He was not charged until March 2014 when a note written by the victim which disclosed she had been abused by the Applicant was found by the paternal grandmother.
After initially pleading not guilty when he was arraigned on 4 December 2014, he entered a plea of guilty on 26 October 2015, the first day listed for his trial to take place at the Parramatta District Court. Counts 1-3 on the indictment did not proceed, with the Crown accepting his pleas of guilty to 3 counts in full discharge of the indictment. The Applicant…

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 AP v The Queen

Details

AGLC: AP v The Queen [2017] NSWCCA 270
Case: [2017] NSWCCA 270
Decision Date: 24 November 2017

CaseChat Overview and Summary

In the matter of AP v The Queen, the respondent appealed against the sentence imposed by the primary judge. The appellant had been convicted of drug trafficking and was sentenced to imprisonment. The appeal centred on the assessment of the objective seriousness of the offences, particularly in the absence of a standard non-parole period, and whether the sentencing judge correctly assessed this aspect. The High Court was tasked with determining whether the sentencing judge appropriately evaluated the objective seriousness of the crimes and whether the absence of a standard non-parole period influenced the sentence imposed.

The court considered whether the sentencing judge's characterisation of the offences as "objectively serious matters" was sufficient to meet the legal requirements. It examined whether the sentencing judge had adequately considered the objective seriousness of the crimes in the context of the absence of a standard non-parole period. The court also noted that the issue regarding the assessment of objective seriousness was not raised at first instance and assessed whether the appellant had demonstrated any error in the primary judge's approach. The court concluded that the sentencing judge had appropriately assessed the objective seriousness of the offences, and no error was demonstrated.

In light of the reasoning above, the appeal was dismissed. The court found that the sentencing judge had appropriately assessed the objective seriousness of the crimes, and the absence of a standard non-parole period did not lead to an inappropriate sentence. The court held that the appellant had not demonstrated any error in the primary judge's approach, and therefore the appeal was dismissed. No further orders were made.

Orders