LS v R

Case [2020] NSWCCA 27 25 March 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LS v R [2020] NSWCCA 27
Hearing dates: 25 November 2019
Date of orders: 25 March 2020
Decision date: 25 March 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Button J at [88]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: APPEAL – sentence appeal – where Form 1 offences taken into account contrary to legislative requirements – re-sentence – where offences objectively serious – where genuine remorse demonstrated – where good albeit guarded prospects of rehabilitation – where assistance does not entitle applicant to discount – where lesser aggregate sentence not warranted
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
DG v R [2017] NSWCCA 139
DL v R [2018] NSWCCA 302
Doumit v R [2011] NSWCCA 134
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
PB v R [2016] NSWCCA 258
R v Amati [2019] NSWCCA 193
R v Brandt [2004] NSWCCA 3
R v Dodd (1991) 57 A Crim R 349
R v Felton (2002) 135 A Crim R 328; [2002] NSWCCA 443
Rae v R [2019] NSWCCA 284
Woodward v R [2017] NSWCCA 44
Category: Principal judgment
Parties: LS (Applicant)
Crown (Respondent)
Representation:
Counsel:
E McLaughlin (Applicant)
C Curtis (Respondent)
Solicitors:
Legal Aid of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/230338
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Gosford

Jurisdiction:

Criminal

Date of Decision:

21 April 2017

Before:

Bozic SC DCJ

File Number(s):

2015/230338

Judgment

HOEBEN CJ at CL: I agree with the judgment of Harrison J and the orders which he proposes.
HARRISON J: The applicant pleaded guilty on 11 November 2016 and was sentenced by Bozic SC DCJ on 21 April 2017 to an aggregate sentence of imprisonment for 11 years with a non-parole period of 7 years for a series of aggravated sexual assaults committed between 12 February 2015 and 30 June 2015 contrary to s 61J(1) of the Crimes Act 1900. The applicant’s non-parole period expires on 5 August 2022. These offences carry a maximum penalty of imprisonment for 20 years. A standard non-parole period of 10 years applies. One count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act and three further counts of aggravated sexual assault were taken into account on a Form 1.
The victim of all of the offences was the applicant’s 15 year old daughter.
The applicant seeks leave to appeal against her sentence upon a single ground of appeal as follows:

Ground 1: The learned sentencing judge erred in his consideration of the matters on the Form 1…

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 LS v R

Details

AGLC: LS v The Queen [2020] NSWCCA 27
Case: [2020] NSWCCA 27
Decision Date: 25 March 2020

CaseChat Overview and Summary

The appeal in LS v R was heard in the High Court of Australia. The appellant, LS, sought to challenge the sentence imposed upon him by the lower court for a series of Form 1 offences. The nature of the dispute centred on the inclusion of these offences in the sentencing process in a manner that contravened legislative requirements. The appellant contended that the consideration of these offences was improper and sought a re-sentencing in light of this alleged error.

The court was required to determine several legal issues. Foremost among these was whether the lower court erred in taking into account the Form 1 offences in sentencing. Additionally, the court needed to consider whether the appellant's objective culpability warranted a re-sentencing, given the serious nature of the offences. Another aspect involved evaluating the appellant's prospects of rehabilitation, particularly in light of the demonstrated remorse and the potential for assistance in his rehabilitation process.

The High Court found that the lower court's consideration of the Form 1 offences was indeed contrary to legislative requirements. However, the court held that due to the objective seriousness of the offences, the appellant's genuine remorse, and the prospects of rehabilitation, a re-sentencing was not warranted. The court noted that while the appellant had shown some remorse, this did not entitle him to a significant discount in his sentence. Ultimately, the court concluded that a lesser aggregate sentence was not justified under the circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders