Johnson J at [1]; R A Hulme J at [2]; Wilson J at [67]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Catchwords:
CRIME – sentence appeal – manifest excess – two counts of aggravated sexual assault in one episode – aggregate sentence - offender reckless as to accused’s cognitive impairment – futile to attempt arithmetic as to accumulation and concurrency between indicatives and aggregate sentences – focus must be on whether aggregate reflects totality of criminality – sentence within judge’s discretion given objective seriousness and no discounts – appeal dismissed
R A HULME J: Brijesh Aryal (the applicant) was sentenced in the District Court on 19 February 2020 for two offences of aggravated sexual assault.
The circumstance of aggravation in relation to each offence was that the victim had a cognitive impairment: s 61J(2)(g).
The offences are contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years and there is a standard non-parole period of 10 years.
His Honour Judge Bourke SC imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years, 6 months dating from 17 March 2018. He specified indicative sentences of 4 years, 6 months with a non-parole period of 3 years (count 1) and 6 years with a non-parole period of 3 years, 9 months (count 3).
The applicant seeks leave to appeal upon the following grounds:
1. The sentencing judge erred in his approach to the totality principle; and
2. The sentence imposed is manifestly excessive.
For the reasons given below, leave to appeal should be granted but the appeal be dismissed.
The offences
The applicant was convicted after trial. The following facts reflect the findings made by the learned sentencing judge.
The victim was aged 21, lived with her mother and grandmother, and had a mild to moderate intellectual disability. Her intelligence was assessed as being greater than only 0.1% of others of her age. She required constant care and…
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.
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Details
AGLC
Aryal v R [2021] NSWCCA 2
Case
[2021] NSWCCA 2
Decision Date
CaseChat Overview and Summary
The case of Aryal v R involved the appellant, who was convicted on two counts of aggravated sexual assault, which occurred during a single episode. The appellant appealed against the severity of his sentence, arguing that it was manifestly excessive. The appeal was heard by the court, which was tasked with determining whether the sentence imposed was appropriate in light of the appellant's cognitive impairment and the nature of the crimes committed.
The court was required to address the legal issues of whether the sentence was within the appropriate range of penalties for the offences, and whether it appropriately reflected the totality of the appellant's criminal conduct. This involved assessing whether the sentence was excessive and whether it adequately accounted for the appellant's cognitive impairment and the circumstances of the offence.
In its reasoning, the court noted that the appellant's cognitive impairment did not warrant a discount in the sentence, as the appellant was reckless as to the cognitive impairment of the victim. The court held that it was futile to attempt to determine the exact accumulation and concurrency between indicative and aggregate sentences. Instead, the focus must be on whether the aggregate sentence appropriately reflected the totality of the criminality involved. The court found that the sentence was within the judge's discretion, given the objective seriousness of the crimes and the absence of any discounts for the appellant's cognitive impairment. Consequently, the appeal was dismissed.
The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the lower court was upheld.