Legal Research
Cases
Arvinthan v The The Queen

Arvinthan v The The Queen

Case [2022] NSWCCA 44 2 March 2022

Appeal

Aggravated Break and Enter

Aggravation

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Arvinthan v R [2022] NSWCCA 44
Hearing dates: 7 February 2022
Date of orders: 2 March 2022
Decision date: 02 March 2022
Before: Leeming JA at [1];
Rothman J at [8];
Harrison J at [67]
Decision:
(1)   Leave to appeal granted;
(2)   Appeal allowed;
(3)   The aggregate sentence imposed upon the applicant, Keerthy Arvinthan, by the District Court at Parramatta on 25 February 2021 is quashed and in lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 10 months, commencing 1 March 2020 and concluding, 31 December 2023, with a non-parole period of 2 years and 4 months, concluding 30 June 2022;
(4)   The applicant be first eligible for release on parole on 30 June 2022.

Catchwords:
CRIME – appeal – victim under 18 – fact taken into account in assessment of objective seriousness – not an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – error – resentenced – enter with intent to commit serious indictable offence – aggravated break and enter and commit serous indictable offence – in each case, serious indictable offence not an aggravating feature of the principal offence – lesser sentence warranted

Legislation Cited:
Crimes Act 1900 (NSW), ss 111(1), 112(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases Cited:
Alesbhi v R; Esbhi v R [2018] NSWCCA 30
Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
Jonson v The Queen (2016) 263 A Crim R 268; [2016] NSWCCA 286
Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McLaughlin v R [2013] NSWCCA 152
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Seymour [2012] NSWSC 1010
R v Wickham [2004] NSWCCA 193
Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Keerthy Arvinthan (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
M Gleeson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/408802
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 253

Date of Decision:

25 February 2021

Before:

Bourke SC DCJ

File Number(s):

2019/408802

Judgment

LEEMING JA: I agree with Rothman J. I wish to elaborate one aspect of this appeal. That aspect is the correctness of the Crown’s concession that it had been wrong to submit to the sentencing judge that one of the offences to which the applicant had pleaded guilty, that of aggravated break, enter and commit a serious indictable offence (sexual touching), was further aggravated by reason of s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim being a 17 year old. It should be noted that the sentencing judge is not to be faulted, for the Crown’s error was not corrected…

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 Arvinthan v The The Queen

Details

AGLC: Arvinthan v The The Queen [2022] NSWCCA 44
Case: [2022] NSWCCA 44
Decision Date: 02 March 2022

CaseChat Overview and Summary

In the case of Arvinthan v The Queen, the defendant, Arvinthan, was appealing his conviction and sentence for aggravated break and enter, and enter with intent to commit a serious indictable offence. The offences were committed against a victim under the age of 18. The case was heard in the Court of Criminal Appeal in New South Wales. The defendant challenged the trial judge's consideration of the victim's age as a factor in the assessment of the objective seriousness of the offences, arguing it amounted to an aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court was required to determine whether the trial judge's consideration of the victim's age constituted an error in principle and whether the defendant's sentence was manifestly excessive.

The court found that the trial judge erred in treating the fact that the victim was under 18 as an aggravating factor, which influenced the assessment of the objective seriousness of the offences. However, this error did not lead to a manifestly excessive sentence. The court noted that the trial judge's overall approach to sentencing was correct, and the sentence was within the range of reasonable responses. The court held that the victim's age is a relevant consideration in assessing the objective seriousness of an offence but should not be treated as an aggravating factor. The court also clarified that the serious indictable offence was not an aggravating feature of the principal offence, and the defendant's sentence should be reconsidered in light of this error.

The Court of Criminal Appeal quashed the defendant's sentence and remitted the case to the District Court for resentencing. The court emphasised that a lesser sentence was warranted due to the error in treating the victim's age as an aggravating factor. The trial judge was directed to re-assess the objective seriousness of the offences, taking into account the correct legal principles, and to impose a new sentence. This decision highlights the importance of correctly applying the law in assessing the objective seriousness of an offence and the impact of errors on the sentence imposed.

Orders