Johnson J at [1] Harrison J at [68] Hamill J at [69]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence dismissed.
Catchwords:
APPEAL - sentence - applicant pleaded guilty to sexual offences committed against his daughter - aggregate sentence of imprisonment for eight years and six months with non-parole period of five years and six months - grounds of appeal asserting that insufficient weight given on sentence to various factors and sufficient regard not paid to other factors - no claim that sentence manifestly excessive - approach to appeal involving challenges to weight given to factors on sentence - error not demonstrated - appeal dismissed
JOHNSON J: By Notice of Application for Leave to Appeal filed on 1 April 2020, the Applicant, Stephen Carr (a pseudonym), seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Wollongong District Court on 27 September 2019 for a number of child sex offences.
The Applicant is referred to by a pseudonym as the use of his real name would identify the victim, the daughter of the Applicant. In sentencing the Applicant in the District Court, his Honour Judge Haesler SC used the same pseudonym: R v Carr (a pseudonym) [2019] NSWDC 805. A similar approach will be taken in the description of the Applicant in the present judgment.…
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
Carr v R [2020] NSWCCA 214
Case
[2020] NSWCCA 214
Decision Date
CaseChat Overview and Summary
The applicant in Carr v R appealed against his sentence, which was imposed following his guilty plea to multiple sexual offences committed against his daughter. The court was tasked with determining the appropriate aggregate sentence, which ultimately resulted in a term of imprisonment totalling eight years and six months, with a non-parole period of five years and six months. The applicant contested the sentence on the grounds that insufficient weight was attributed to various mitigating factors, and that other factors were not sufficiently considered. Notably, the appeal did not contend that the sentence was excessively severe but rather focused on the weight assigned to certain factors during sentencing.
The court examined the legal issues by evaluating the principles governing sentencing and the appropriate weight to be given to different factors in a sentencing decision. The applicant argued that the sentencing judge had erred in the weight given to the mitigating factors and had failed to sufficiently consider other factors. The court assessed whether the error alleged by the applicant had been demonstrated, as required for a successful appeal against sentence. The appeal was premised on the challenge to the weight given to factors on sentence, which necessitated a rigorous examination of the sentencing judge's reasoning and the proportionality of the sentence.
The court concluded that the applicant had not demonstrated an error in the approach taken by the sentencing judge. The reasoning of the sentencing judge was found to be sound, and the weight given to the mitigating factors was deemed appropriate in the circumstances. The court found no basis to interfere with the sentence, as the appeal did not establish that the sentence was manifestly excessive or that the sentencing judge had failed to properly consider relevant factors. Consequently, the appeal was dismissed, and the original sentence stood affirmed.