Aubourg v The Queen - [2013] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aubourg v R [2013] NSWCCA 154
Hearing dates: 25 June 2013
Decision date: 25 June 2013
Before: Basten JA at [1];
R A Hulme J at [29];
Garling J at [30]
Decision:
1. Grant leave to appeal
2. Dismiss the appeal

Catchwords:
CRIMINAL LAW - appeal - sentencing - whether error of fact by sentencing judge materially affected sentence imposed - applicant charged with kidnapping offence in company of co-offenders - sentencing judge wrongly attributed threat to use knife to applicant - whether error material
CRIMINAL LAW - appeal - sentencing - whether appellate court should reduce sentence where sentencing judge made material error of fact - error did not relate to most serious aspect of offending - sentence not manifestly excessive for objective offending - applicant's culpability not significantly reduced by subjective circumstances - reduction would create disparity with less culpable co-offender - whether less severe sentence warranted in law - Criminal Appeal Act 1912 (NSW), s 6(3)
Legislation Cited: Crimes Act 1900 (NSW), s 86(2)(a)
Cases Cited: R v Speechley [2012] NSWCCA 130
Category: Principal judgment
Parties: Jessica Lynette Aubourg (Applicant)
Director of Public Prosecutions (Respondent)
Representation: Counsel:
T Gartelmann (Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/150018
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-09-12 00:00:00

Before:

Sides DCJ

File Number(s):

2011/00150018

Judgment

BASTEN JA: The applicant, Jessica Lynette Aubourg, sought leave to appeal against a sentence imposed on her by Judge Sides QC in the District Court on 12 September 2012. The matter proceeded in the District Court on a guilty plea, with an agreed statement of facts. The applicant also gave oral evidence. In this Court it was common ground that the sentencing judge made a factual error in giving reasons for the sentence imposed. The two issues before this Court were (a) whether the error materially affected the sentence imposed and (b), if so, whether a less severe sentence was warranted in law.

At the conclusion of the hearing, the Court granted leave to appeal, but dismissed the appeal. Reasons were reserved.

In order to understand the nature and significance of the error, it is necessary to provide some factual background to the circumstances of the offending and also the procedural background to the matter in the District Court.

Background

The offending took place on the evening of 2 May 2011. In August 2010 the applicant had made a complaint to Police that she had been raped by a young man, Mosa (Julius) Mbele. Although the applicant claimed that she had been dissuaded from pursuing her complaint by Police, the sentencing judge found that she had decided not to press the charge. The decision was one she later regretted, as Mr Mbele continued to harass her by phone calls and text messages. She formed an intention to take steps to "scare him a bit", so he would leave…

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 Aubourg v The Queen

Details

AGLC: Aubourg v The Queen [2013] NSWCCA 154
Case: [2013] NSWCCA 154
Decision Date: 25 June 2013

CaseChat Overview and Summary

In the case of Aubourg v The Queen, the appellant, Aubourg, sought an appeal against his sentencing for a kidnapping offence committed in the company of co-offenders. The dispute centred around whether an error of fact by the sentencing judge materially affected the sentence imposed. The Supreme Court of New South Wales was tasked with determining the matter.

The legal issue before the court was whether the appellate court should reduce the sentence imposed by the sentencing judge, who had made an error of fact in attributing the threat to use a knife to Aubourg. The court had to consider whether the error materially affected the sentence, and whether a less severe sentence was warranted in light of the error. The court also needed to determine if the error related to the most serious aspect of the offending, and whether Aubourg's culpability was significantly reduced by the subjective circumstances.

The court held that the error made by the sentencing judge did not relate to the most serious aspect of the offending, which was the kidnapping itself. The sentence imposed was not manifestly excessive for the objective offending, and Aubourg's culpability was not significantly reduced by the subjective circumstances. The court found that reducing the sentence would create a disparity with less culpable co-offenders. As such, the appeal was dismissed, and the original sentence was upheld. The court concluded that a less severe sentence was not warranted in law, and referred to the provisions of the Criminal Appeal Act 1912 (NSW), section 6(3) in reaching its decision.

Orders