3. Quash the sentence imposed in the District Court on 26 August 2021. In lieu, sentence the appellant to an aggregate sentence of 13 years imprisonment commencing 11 June 2020 and expiring 10 June 2033 with a non-parole period of 9 years expiring 10 June 2029.
4. The appellant is first eligible for release on parole on 10 June 2029.
Catchwords:
CRIME – appeals –appeal against sentence – child sex offences – manifest excess – eight counts of offending – child victims members of applicant’s extended family – pleas of guilty to two counts of persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – unlawful sexual acts – determinations of objective seriousness – s 66EA offences assessed by sentencing judge respectively as just below middle range and above midrange – where determinations outside proper exercise of discretion – examination of comparative cases – where far more serious offending required for such findings – error established – where applicant re-sentenced
Counsel: T Warwick (Applicant) I Nash (Respondent)
Solicitors: K Bolas (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2020/167827 & 2020/208057
Publication restriction:
Nil
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant (JG) pleaded guilty to one count of possessing child abuse material, and to seven counts of sexual offending against four children: AA, AB, PC and AD. Each of the victims was a member of the applicant’s extended family. The applicant…
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
JG v R [2023] NSWCCA 33
Case
[2023] NSWCCA 33
Decision Date
CaseChat Overview and Summary
In the case of JG v R, the appellant, JG, was convicted of multiple offences related to persistent sexual abuse of children under the age of 16, as per section 66EA of the Crimes Act 1900 (NSW). JG entered pleas of guilty to two counts of the offence, with the remaining charges being withdrawn. The court was tasked with assessing the legal issues surrounding the severity of the offences and the appropriateness of the sentences imposed. The primary focus was on whether the sentencing judge's determinations of objective seriousness were within the proper exercise of discretion, considering the nature and circumstances of the offences.
The court examined the sentencing judge's assessment of the two counts of s 66EA offences, which were classified as just below the middle range and above the midrange, respectively. The appeal centred on whether these determinations were outside the proper exercise of discretion, given the severity of the offences. The court found that the determinations were not in line with the appropriate exercise of discretion, as the comparative cases reviewed indicated that significantly more serious offending was required for such findings. The court identified an error in the sentencing process that warranted a re-sentencing of the appellant.
The court concluded that the original sentences imposed were a manifest excess and, as such, the appellant was re-sentenced. The reasoning provided by the court emphasised the need for a careful consideration of the objective seriousness of the offences, ensuring that the sentences imposed were proportionate to the gravity of the crimes committed. The final orders of the court mandated a re-sentencing of JG, taking into account the correct principles and guidelines for assessing the severity of child sex offences.