Legal Research
Cases
ET v The King

ET v The King

Case [2024] NSWCCA 131 26 July 2024

Appeal

Sentencing

Aggravated & Exemplary Damages

Mental Health

Remorse

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: ET v R [2024] NSWCCA 131
Hearing dates: 8 July 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Before: Mitchelmore JA at [1]
Kirk JA at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against aggregate sentence – four counts involving two complainants of assaulting a female and committing an act of indecency on a person under the age of 16 years – whether sentencing judge gave consideration to reducing the applicant’s moral culpability due to his age at the time of offence – where applicant did not make submissions on his age and immaturity – sentencing judge still reduced the applicant’s moral culpability – no error shown - whether sentencing judge had failed to find remorse – where no submission made by applicant to sentencing judge regarding remorse - where applicant had previously apologised to one complainant – no other statement or indication of remorse - apology did not show that applicant had accepted responsibility for his action – no error shown
CRIME – appeals – appeal against sentence – manifest excess – whether indicative sentences were excessive resulting in manifestly excessive aggregate sentence - where the offences constituted serious offending against two young and defenceless victims – where a generous reduction of the non-parole period was granted – indicative sentences and the aggregate sentence were open to the sentencing judge – sentence not manifestly excessive
EVIDENCE – new evidence – evidence sought to be led on appeal which was not before sentencing judge – where applicant submitted a miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence – new evidence related to a conviction recorded against the applicant in 1975 – where applicant submitted that the new evidence demonstrated his mental health issues relating to offences against second complainant – new evidence did not add anything of substance to evidence before sentencing judge – new evidence did not make any link or material contribution to the applicant’s offending – where sentencing judge had reduced the applicant’s moral culpability on account of his mental health – no miscarriage of justice - evidence rejected

Legislation Cited:
Crimes Act 1900 (NSW) s 76 (repealed)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 21B

Cases Cited:
Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Brzozowski v R [2023] NSWCCA 129
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cameron v R (2002) 209 CLR 339; [2002] HCA 6
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Edmonds v R [2022] NSWCCA 103
Ghamraoui v R [2009] NSWCCA 111
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Obeid…

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 ET v The King

Details

AGLC: ET v The King [2024] NSWCCA 131
Case: [2024] NSWCCA 131
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the case of ET v The King, the applicant, ET, appealed against his sentence and conviction in relation to four counts of assault and committing an act of indecency on a person under the age of 16 years. The appeal was heard by the Court of Appeal. The central legal issues addressed by the Court were whether the sentencing judge had erred in not considering the applicant's age and immaturity in reducing his moral culpability, whether the judge had failed to find remorse on the part of the applicant, and whether the aggregate sentence was manifestly excessive. Additionally, the Court considered the applicant's submission that a miscarriage of justice had occurred due to the absence of new evidence at the sentencing hearing.

The Court found that the sentencing judge had not erred in reducing the applicant's moral culpability due to his age and immaturity, as the applicant had not made any submissions on these factors during the sentencing hearing. The Court held that the applicant's apology to one of the victims did not necessarily indicate that he accepted responsibility for his actions. The Court also determined that the aggregate sentence was not manifestly excessive, considering the serious nature of the offences against the two young and defenceless victims, and the generous reduction of the non-parole period granted by the sentencing judge. The indicative sentences and the aggregate sentence were within the sentencing judge's discretion, and no manifest excess was found.

Regarding the new evidence presented by the applicant, the Court found that it did not add anything of substance to the evidence before the sentencing judge. The new evidence related to a 1975 conviction against the applicant and his mental health issues, but it did not make any link or material contribution to the applicant's offending. The sentencing judge had already reduced the applicant's moral culpability on account of his mental health, and thus, the new evidence did not result in a miscarriage of justice. The Court rejected the applicant's submission regarding the new evidence.

Orders