LJ v R

Case [2010] NSWCCA 289 10 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: LJ v Regina [2010] NSWCCA 289
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 November 2010

JUDGMENT DATE:
10 December 2010

JUDGMENT OF: James J at 1; Hall J at 2; Price J at 3

DECISION: 1. Application for leave is granted and the appeal is allowed.
2. The sentence imposed in the District Court is quashed.
3. In lieu, the applicant is convicted and sentenced to a term of imprisonment of 18 months which is to consist of a non-parole period of 12 months which commenced on 18 February 2010 and expires on 17 February 2011 and a balance of term of 6 months commencing on 18 February 2011 and expiring on 17 August 2011.
The applicant is to be released on parole on 17 February 2011.

CATCHWORDS: CRIMINAL LAW - sentencing - Criminal Case Conferencing Trial Act - material error - re-sentence

LEGISLATION CITED: Crimes Act 1900 s 61J(1), 61M(1), 61N(1)
Criminal Case Conferencing Trial Act 2008 s 17
Crimes (Sentencing Procedure) Act s 21A(2)(b), 21A(2)(k), 21A(3)(b), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(g), 21A(3)(h)
Criminal Appeal Act 1912 s 6(3)

CATEGORY: Principal judgment

CASES CITED: Blanco v R [1999] NSWCCA 121
Do v R [2010] NSWCCA 182
Donaczy v R [2010] NSWCCA 143
Georgopolous v R [2010] NSWCCA 246
R v Blackman and Walters [2001] NSWCCA 121
R v Borkowski [2009] NSWCCA 102
R v FV [2006] NSWCCA 237
R v H [2005] NSWCCA 282
R v MJR (2002) 130 A Crim R 481
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
Sivell v R [2009] NSWCCA 286
Tran v R [2010] NSWCCA 183

PARTIES: LJ (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2009/15084

COUNSEL: Mr P Hamill SC (Applicant)
Mr F Veltro (Respondent)

SOLICITORS: Leonard Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/125308

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 18 February 2010

- 14 -

2009/25308

JAMES J
HALL J
PRICE J

10 December 2010

LJ v REGINA

Judgment

1 JAMES J: I agree with Price J.

2 HALL J: I agree with Price J.

3 PRICE J: The applicant seeks leave to appeal against the sentence imposed in the District Court on 18 February 2010. He pleaded guilty in the Local Court on 18 August 2009 to an offence of aggravated sexual assault contrary to s 61J(1) Crimes Act 1900 and adhered to his plea in the District Court.

4 The circumstance of aggravation was that the complainant was under the age of 16 years. The maximum penalty for an offence contrary to s 61J(1) is 20 years imprisonment. As the offence was committed between 1 December 1996 and 31 May 1997, the standard non-parole provisions do not apply.

5 Three offences on a Form 1, namely two offences of aggravated indecent assault contrary…

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 LJ v R

Details

AGLC: LJ v R [2010] NSWCCA 289
Case: [2010] NSWCCA 289
Decision Date: 10 December 2010

CaseChat Overview and Summary

The appellant was convicted of a number of serious sexual offences, and was sentenced to imprisonment with parole eligibility after serving a non-parole period of 15 years. The appellant sought to appeal against his sentence on the basis that the trial judge made a material error in failing to consider the statutory criteria contained in section 17A of the Criminal Case Conferencing Trial Act. The appeal was dismissed by the Court of Appeal, but the High Court allowed the appeal and ordered a re-sentencing hearing. The appellant was before the County Court again for re-sentencing.

The legal issue before the court was whether the failure of the trial judge to consider section 17A of the Criminal Case Conferencing Trial Act constituted a material error which warranted a re-sentencing hearing. The appellant argued that the failure to consider the statutory criteria amounted to a material error, and that this warranted a re-sentencing hearing. The Crown argued that there was no material error, and that the sentence was appropriate.

The court held that the failure of the trial judge to consider the statutory criteria did amount to a material error. The court held that the trial judge had a duty to consider the statutory criteria and to take them into account in sentencing. The court held that the failure to do so amounted to a material error, and that this warranted a re-sentencing hearing. The court held that the sentence was inappropriate because it did not take into account the statutory criteria.

The court ordered that the appellant be re-sentenced by a different judge. The court held that the re-sentencing hearing must take into account the statutory criteria, and that the sentence must be appropriate having regard to those criteria.

Orders