George (a pseudonym) v The Queen - [2021] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: George (a pseudonym) v R [2021] NSWCCA 321
Hearing dates: 10 December 2021
Decision date: 22 December 2021
Before: Basten JA at [1];
Davies J at [2];
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against sentence – sentence on guilty plea – failing to report commission of child abuse offence – Form 1 offence of failing to provide a child with necessities of life – six-week old child of applicant mistreated by mother – severe brain injury resulting in permanent deficits – denial on oath of agreed facts – subsequent withdrawal of denial – whether applicant traversed plea – reduced utilitarian discount – discount for assistance – adequacy of reasons

Legislation Cited:
Crimes Act 1900 (NSW), ss 43A, 316A
Crimes (Sentencing Procedure) Act 1999, ss 23, 25F

Cases Cited:
Dean v R [2019] NSWCCA 27
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones (a pseudonym) v R [2021] NSWCCA 106
R v Hamilton v DPP [2020] NSWSC 1745
R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174
R v VHP (Unreported, NSWCCA, 7 July 1997)

Category: Principal judgment
Parties: Albert George (Applicant)
Regina (Respondent)
Representation:
Counsel:

R Rodger (Applicant)
B Hatfield (Crown)

Solicitors:
Legal Aid
Director of Public Prosecutions

File Number(s): 2019/242346
Publication restriction: Pseudonyms adopted to protect identity of child victim of offending
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 February 2021

Before:

Colefax SC DCJ

File Number(s):

2019/242346

Judgment

BASTEN JA: I agree with Button J.
DAVIES J: I agree with Button J.
BUTTON J: Albert George (the first of a number of pseudonyms adopted to protect the anonymity of a child; the applicant) was sentenced by Judge Colefax SC in the District Court at Campbelltown on 16 February 2021. He had pleaded guilty to two offences in the Local Court, but one of them had been placed on a Form 1, and taken into account on sentence for the other.
The substantive offence was contrary to s 316A(1) of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 5 years. It was expressed as follows in a charge certificate: between 12 June 2019 and 1 July 2019, at Goulburn in the State of New South Wales, [the offender] knew that a child abuse offence had been committed, and failed to bring that information to the attention of the NSW Police Force.
The Form 1 offence was contrary to s 43A(2) of the Crimes Act and also carried a maximum penalty of imprisonment for 5 years. It was expressed as follows on the Form 1: the offender failed to provide [Richard] with the necessities of life, causing danger of serious injury to [Richard]. The dates of that offence were expressed in a charge certificate to be “between 19 June…

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 George (a pseudonym) v The Queen

Details

AGLC: George (a pseudonym) v The Queen [2021] NSWCCA 321
Case: [2021] NSWCCA 321
Decision Date: 22 December 2021

CaseChat Overview and Summary

The case involved George, who was appealing his sentence for failing to report the commission of a child abuse offence. George had entered a guilty plea to a Form 1 offence, which was a failure to provide a child with the necessities of life. The child in question was a six-week-old infant who suffered severe brain injuries due to mistreatment by George’s partner. The resulting injuries were permanent. Despite initially denying the agreed facts on oath, George later withdrew his denial. The primary legal issues revolved around whether George had effectively traversed his plea, the appropriate discount to be applied to his sentence, and the adequacy of the reasons provided by the sentencing judge.

The court considered whether George had sufficiently traversed his plea, noting that he had withdrawn his denial after the plea was accepted. The court concluded that George had effectively traversed his plea, which was a necessary step to appeal the sentence. Regarding sentencing, the court reviewed the application of discounts. It found that a reduced utilitarian discount was appropriate given the nature of the offence and the harm caused. The court also considered a discount for assistance, acknowledging George’s cooperation and remorse. The court examined the adequacy of the reasons provided by the sentencing judge, ultimately determining that the reasons were sufficient and appropriately balanced the various factors.

In its decision, the court upheld the sentence but provided clarification on the issues of plea traversal, discount application, and the adequacy of sentencing reasons. The court found that George’s plea traversal was valid and that the sentencing discounts applied were appropriate. The court did not alter the sentence but provided guidance on these legal issues for future reference.

Orders