JE v The Queen - [2019] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JE v R [2019] NSWCCA 225
Hearing dates: 26 August 2019
Date of orders: 27 September 2019
Decision date: 27 September 2019
Before: Hoeben CJ at CL at [1];
Brereton JA at [58];
Fullerton J at [59]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The aggregate sentence imposed on JE by his Honour Judge Bennett SC on 24 January 2019 is quashed.
(4)   In lieu thereof, JE is sentenced to an aggregate sentence of 3 years to commence 7 August 2018 and expire 6 August 2021 with a non-parole period of 1 year and 6 months to expire on 6 February 2020.

Catchwords: CRIMINAL LAW – sentence appeal – two offences of aggravated sexual assault in company, one count of aggravated indecent assault, one count of produce child abuse material – sexual assault by two school boys on female fellow student – whether unjustified disparity in sentences imposed – moral culpability of one offender greater than other – unexplained inconsistency in indicated sentences – disparity established – need to re-sentence.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61J(1), 61M(2), 91H(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: KR v R [2012] NSWCCA 32
Category: Principal judgment
Parties: JE – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Fraser – Applicant
K Jeffreys – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2017/229917
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) there is to be no publication of the names that identify or are likely to lead to the identification of the applicant, the co-offender or the complainant.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 January 2019

Before:

Bennett SC DCJ

File Number(s):

2017/229917

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant JE, a juvenile, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Bennett SC on 24 January 2019 in the District Court at Parramatta.

The applicant was sentenced jointly with his co-offender NA (also a juvenile). Both were sentenced for offences of a sexual nature committed upon the complainant on 26 July 2017.
The applicant was sentenced to an aggregate term of imprisonment of 4 years, to date from 7 August 2018, with a non-parole period of 2 years. The non-parole period represented 50 per cent of the head sentence, reflecting a finding of special circumstances. The applicant’s sentence was backdated by 171 days, comprising 78 days of pre-sentence custody and 93 days on account of stringent bail conditions.
NA was sentenced to an aggregate term of imprisonment of 4 years and 3 months, to date from 1 August 2018, with a non-parole period of two years. The non-parole period represented 47 per cent of…

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 JE v The Queen

Details

AGLC: JE v The Queen [2019] NSWCCA 225
Case: [2019] NSWCCA 225
Decision Date: 27 September 2019

CaseChat Overview and Summary

In the case of JE v The Queen, the appellant was convicted of two counts of aggravated sexual assault in company, one count of aggravated indecent assault, and one count of producing child abuse material. The appellant, together with a fellow student, sexually assaulted a female student. This appeal pertains to the sentence imposed by the Court of Appeal, which was deemed disproportionate when compared to the co-offender. The High Court of Australia was tasked with assessing the fairness and justification of the sentence disparity between the appellant and his co-offender.

The primary legal issue before the court was whether the disparity in sentences between the appellant and his co-offender was unjustified, given that the moral culpability of the two offenders was not significantly different. The court had to consider whether the disparity was a result of an unexplained inconsistency, which would necessitate a re-sentencing of the appellant. The court also needed to examine whether the disparity was so substantial as to render the sentence unjust.

The court found that the disparity in sentences was unjustified, primarily due to the lack of a clear explanation for the difference in the severity of the sentences imposed on the appellant and his co-offender. The court held that there was no substantial difference in the moral culpability of the two offenders, which led to the conclusion that the disparity was an unexplained inconsistency. Consequently, the court determined that the appellant needed to be re-sentenced to rectify the inconsistency and ensure a just outcome. The High Court ultimately allowed the appeal, quashed the sentences imposed by the Court of Appeal, and remitted the matter back to the Court of Appeal for re-sentencing.

Orders