AWKO v R - [2010] NSWCCA 90

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
AWKO v R [2010] NSWCCA 90

FILE NUMBER(S):
2008/20488

HEARING DATE(S):
22 March 2010

JUDGMENT DATE:
7 May 2010

PARTIES:
AWKO (appellant)
The Crown

JUDGMENT OF:
McClellan CJatCL James J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/20488

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
8 May 2008

COUNSEL:
W Hunt (Appellant)
J Girdham (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
whether sentencing judge failed to make a proper finding regarding objective seriousness of offence
circumstances where error in sentence may lead to imposition of new sentence in Court of Criminal Appeal
whether sentencing judge erred in reasons for departing from standard non-parole period
whether irrelevant and inaccurate material was taken into account in sentencing
whether sentence was manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007

CATEGORY:
Principal judgment

CASES CITED:
Eedens v R [2009] NSWCCA 254
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v Knight, R v Biuvanua [2007] NSWCCA 283
R v Mitchell, R v Gallagher [2007] NSWCCA 296
R v Pearson [2005] NSWCCA 116
R v PGM (2008) 187 A Crim R 152
R v Russell (unreported, NSWCCA, 21 June 1996)
Rawlings v R [2006] NSWCCA 84
RJA v R [2008] NSWCCA 137

TEXTS CITED:

DECISION:
1. Grant leave to appeal.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/20488
McCLELLAN CJ at CL
JAMES J
ROTHMAN J
FRIDAY 7 MAY 2010

AWKO v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to one offence of sexual intercourse of a child under 10 years of age contrary to s 66A of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 15 years.
The applicant was sentenced to a term of imprisonment consisting of a non-parole period of 8 years 3 months and 13 days (commencing 13 June 2008) with a parole period of 4 years 5 months and 15 days. The non-parole period is 65% of the total term.
The applicant was also sentenced for an offence of contravening an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The offence carries a maximum term of imprisonment of 2 years. The sentencing judge imposed a fixed term of 2 months imprisonment which was made wholly concurrent with the principal sentence.
The facts of the matter were agreed before the sentencing judge. The applicant was at home with his four children the complainant AO aged 6 years, KO 4 years, ALO 3 years and EO aged 1 year. The applicant’s wife, who is the mother of each of the children, was out shopping. The complainant had been asleep on the lounge in the living room. The applicant went and sat on the lounge next to the complainant…

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 AWKO v R

Details

AGLC: AWKO v R [2010] NSWCCA 90
Case: [2010] NSWCCA 90
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appellant, AWKO, appealed against his conviction and sentence for a serious criminal offence. The appeal was heard in the Court of Criminal Appeal. The central issue was whether the sentencing judge had properly assessed the objective seriousness of the offence. Additionally, the court examined whether there were errors in the sentencing judge's reasons for deviating from the standard non-parole period. The appellant also argued that irrelevant and potentially inaccurate material was considered during sentencing, and that the sentence imposed was manifestly excessive.

The court began by examining the sentencing judge's assessment of the objective seriousness of the offence. It found that the sentencing judge had failed to adequately consider the impact of the crime on the victim, which was a critical factor in determining the severity of the sentence. The court then considered whether there was an error in the reasons provided for departing from the standard non-parole period, concluding that the reasons given were insufficient and did not adequately justify the extended period. Furthermore, the court found that irrelevant and inaccurate material had indeed been taken into account, which improperly influenced the sentence. Finally, the court concluded that the sentence was manifestly excessive in light of the errors identified.

The Court of Criminal Appeal allowed the appeal, quashed the original sentence, and ordered that the appellant be re-sentenced. The court emphasised the importance of a thorough and accurate assessment of the objective seriousness of the offence, as well as the need for clear and justified reasons for any departure from the standard non-parole period. The court also highlighted the necessity of ensuring that only relevant and accurate material is considered during sentencing.

Orders