Arvinthan v The The Queen

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.