At v R

Case [2020] NSWCCA 178 29 July 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AT v R [2020] NSWCCA 178
Hearing dates: 3 June 2020
Date of orders: 29 July 2020
Decision date: 29 July 2020
Before: Simpson AJA at [1];
Bellew J at [2];
Wilson J at [3].
Decision:
1. Grant an extension of time in which to file an application for leave to appeal to 3 February 2020;
2. Refuse leave to advance grounds 1 and 2;
3. Grant leave to advance ground 3;
4. Uphold the appeal;
5. Quash the sentence imposed in the District Court and, in lieu, sentence the applicant to a term of imprisonment of 6 years and 6 months, to date from 3 September 2016, expiring on 2 March 2023; with a non-parole period of 4 years and 3 months, expiring on 2 December 2020.

Catchwords:
CRIME – SENTENCE APPEAL – application for extension of time – application for leave to appeal against sentence – offence of sexual intercourse with a child under 10 years – child 19 months old – applicant in a position of trust – whether sentencing judge took into account an irrelevant feature and failed to take into account a relevant feature – whether sentence is manifestly excessive

Legislation Cited:
Crimes Act (1900) NSW
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
EG v R [2015] NSWCCA 21
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PS v R [2015] NSWCCA 20
R v AJP [2004] NSWCCA 434
R v Fisher (1989) 40 A Crim R 442
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)
R v ND [2016] NSWCCA 103
R v Skinner (1993) 72 A Crim R 151
RC v R; R v RC [2020] NSWCCA 76
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Trevor Essex v R [2013] NSWCCA 11
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: AT (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Ramage QC (Applicant)
D Patch (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/00260882
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the identification of the complainant, or any material that might identify her, including the name of the applicant
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2016

Before:

Hock DCJ

File Number(s):

2014/00260882

Judgment

SIMPSON AJA: I agree with Wilson J.
BELLEW J: I agree with Wilson J.

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 At v R

Details

AGLC: At v The Queen [2020] NSWCCA 178
Case: [2020] NSWCCA 178
Decision Date: 29 July 2020

CaseChat Overview and Summary

The appellant was convicted of sexual intercourse with a child under 10 years of age. The victim in this case was 19 months old and the appellant was in a position of trust over the child. The appellant sought an extension of time to appeal against his sentence as he had not filed his notice of appeal within the requisite time. He also sought leave to appeal against the sentence, arguing that the sentence was manifestly excessive and that the sentencing judge had failed to take into account relevant mitigating factors and had taken into account irrelevant aggravating factors. The respondent opposed the application for an extension of time and the application for leave to appeal.

The central legal issues in this case were whether the sentencing judge took into account an irrelevant feature and failed to take into account a relevant feature, and whether the sentence was manifestly excessive. The court considered the relevant sentencing principles and the circumstances of the case, including the gravity of the offence, the appellant’s position of trust over the victim, and the impact of the offence on the victim. The court also considered the principles of proportionality and whether the sentence was manifestly excessive.

The court found that the sentencing judge did not take into account an irrelevant feature or fail to take into account a relevant feature. The court also found that the sentence was not manifestly excessive. The court held that the sentence was within the range of sentences that could be imposed for this type of offence and that the sentencing judge had properly considered the relevant aggravating and mitigating factors. The court held that the appellant had not demonstrated that the sentence was manifestly excessive or that there had been a significant error in the sentencing process.

The application for an extension of time and the application for leave to appeal were dismissed.

Orders