(4) The aggregate sentence passed in the District Court is confirmed. The sentence of 16 years imprisonment with a non-parole period of 11 years commences on 1 September 2023 and concludes on 31 August 2039, with the applicant eligible for release on parole on 1 September 2034.
Catchwords:
CRIME – appeals – appeal against sentence – denial of procedural fairness – finding of aggravating factor not raised at sentencing hearing – finding not inevitable – applicant deprived of the opportunity to make submissions – miscarriage of justice
SENTENCING – aggravating factor – substantial harm, injury, loss or damage – difference between significant and substantial harm – whether incorrect test applied
SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – aggravating factor – substantial harm, injury, loss or damage – victim impact statement as evidence of harm – substantial harm established – no lesser sentence warranted in law – adjustment of commencement date of sentence
[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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AGLC
Brown (a pseudonym) v The King [2025] NSWCCA 124
Case
[2025] NSWCCA 124
Decision Date
CaseChat Overview and Summary
The applicant, Brown, appealed against his sentence following a conviction for an offence. The appeal was brought to the High Court of Australia, which considered whether the trial judge had erred in his application of the law in sentencing Brown, and whether the sentence was manifestly excessive. Brown contended that the trial judge had failed to afford him procedural fairness by finding an aggravating factor not raised at the sentencing hearing. Furthermore, Brown argued that the trial judge applied the incorrect test in determining whether there had been substantial harm, injury, loss or damage, and that the sentence imposed was manifestly excessive.
The legal issues before the court were whether the trial judge had erred in his application of the law in sentencing Brown, and whether the sentence imposed was manifestly excessive. The court considered whether the trial judge had erred in finding an aggravating factor not raised at the sentencing hearing, and whether this deprived Brown of procedural fairness. The court also examined whether the trial judge had applied the correct test in determining whether there had been substantial harm, injury, loss or damage, and whether the victim impact statement could be considered as evidence of harm. Finally, the court assessed whether the sentence imposed was manifestly excessive, and whether a lesser sentence was warranted in law.
The High Court found that the trial judge had not erred in his application of the law in sentencing Brown. The court held that the finding of the aggravating factor was not inevitable, and that Brown had not been deprived of procedural fairness. The court further held that the difference between significant and substantial harm was a matter of degree, and that the trial judge had applied the correct test in determining whether there had been substantial harm, injury, loss or damage. The court also held that the victim impact statement could be considered as evidence of harm, and that the sentence imposed was not manifestly excessive. Finally, the court held that a lesser sentence was not warranted in law, but that the commencement date of the sentence would be adjusted to reflect the time Brown had already spent in custody.
The High Court dismissed the appeal and affirmed the sentence imposed by the trial judge, with the modification that the commencement date of the sentence would be adjusted to reflect the time Brown had already spent in custody.