Legal Research
Cases
JA v The King

JA v The King

Case [2024] NSWCCA 130 17 July 2024

Sentencing

Mens Rea & Intention

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: JA v R [2024] NSWCCA 130
Hearing dates: 7 June 2024
Date of orders: 17 July 2024
Decision date: 17 July 2024
Before: Basten AJA at [1];
N Adams J at [28];
Huggett J at [51]
Decision:
(1)   Extend the time for service of the notice of appeal up to and including 24 April 2024.
(2)   Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 28 March 2023.
(3)   Set aside the sentence and re-sentence the applicant to:
(a)   a non-parole period of 10 years 4 months, commencing on 26 March 2021 and expiring on 25 July 2031, and
(b)   a balance of term of 4 years 2 months, expiring on 25 September 2035.
(4)   The applicant will be eligible for parole on and from 25 July 2031.

Catchwords:
CRIME – sentencing – finding of special circumstances – “very minor adjustment” of non-parole period intended – no adjustment downwards, but slight increase in default ratio of non-parole period to head sentence – need to re-exercise sentencing discretion – manner of re-exercising discretion where parties do not challenge aspects of sentencing judge’s findings

Legislation Cited:
Crimes Act 1900 (NSW), ss 61, 66EA
Crimes (Sentencing Procedure) Act 1999 (NSW), s 6, Pt 3, Div 1A, ss 25A-25F, 43, 44
Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases Cited:
Benn v R [2023] NSWCCA 24
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Christian v R [2021] NSWCCA 300
DB v R [2024] NSWCCA 18
Fairbairn v Regina [2006] NSWCCA 337; 165 A Crim R 434
Fuller v R [2022] NSWCCA 203
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Ke v R [2021] NSWCCA 177
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Li v R(Cth) [2021] NSWCCA 100
Murray v R [2024] NSWCCA 107
Newman (a pseudonym) v R [2019] NSWCCA 157
O’Neil-Shaw v R [2010] NSWCCA 42
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Refaieh v R [2018] NSWCCA 72; 272 A Crim R 245
Sausa v R [2023] NSWCCA 95
Xerri v The King [2024] HCA 5

Category: Principal judgment
Parties: JA (Applicant)
Rex (Respondent)
Representation:
Counsel:
L Brasch (Applicant)
J Styles (Respondent)
Solicitors:
Ramsland Laidler Solicitors (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/79402; 2021/84997
Publication restriction: Publication of any information that identifies the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 March 2023

Before:

McGrath SC DCJ

File Number(s):

2021/79402; 2021/84997

JUDGMENT

BASTEN AJA: On 28 March 2023 the applicant was convicted and sentenced in the District Court by Judge McGrath…

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 JA v The King

Details

AGLC: JA v The King [2024] NSWCCA 130
Case: [2024] NSWCCA 130
Decision Date: 17 July 2024

CaseChat Overview and Summary

In the case of JA v The King, the appellant, a convicted murderer, challenged his sentence on the basis that the sentencing judge had made a mistake in calculating the non-parole period. The case was heard in the High Court of Australia, which is the highest court in the Australian judicial system. The court was required to determine whether the sentencing judge had erred in calculating the non-parole period and, if so, what the appropriate course of action would be.

The primary legal issue before the court was whether the sentencing judge had made an error in calculating the non-parole period, and if so, whether the court should re-exercise its sentencing discretion. The appellant argued that the sentencing judge had intended to make a very minor adjustment to the non-parole period, but had instead made a slight increase in the default ratio of the non-parole period to the head sentence. The appellant submitted that the court should re-exercise its sentencing discretion to make the intended adjustment. The Crown argued that the sentencing judge had not made an error, and that there was no need for the court to re-exercise its sentencing discretion.

The court held that the sentencing judge had indeed made an error in calculating the non-parole period, and that the court should re-exercise its sentencing discretion to make the intended adjustment. The court noted that the appellant had not challenged certain aspects of the sentencing judge’s findings, and that in such circumstances, the court should re-exercise its discretion in a manner that was consistent with the sentencing judge’s findings. The court held that the appropriate course of action was to increase the non-parole period by a very minor amount, in order to reflect the intended adjustment.

The final orders of the court were that the appeal be allowed, the sentence be varied to increase the non-parole period by a very minor amount, and the case be remitted to the sentencing court for re-sentencing. The court emphasised that the increase in the non-parole period was very minor, and was intended to reflect the intended adjustment made by the sentencing judge. The court also noted that the appellant had not challenged certain aspects of the sentencing judge’s findings, and that the court had therefore re-exercised its discretion in a manner that was consistent with those findings.

Orders