Leeming JA at [1]; R A Hulme J at [5]; Beech-Jones J at [81]
Decision:
1. Leave to appeal allowed and the appeal against sentence upheld. 2. Quash the sentence imposed in the District Court on 11 December 2015 and lieu, sentence the applicant to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months. The sentence will date from 4 December 2014 and the applicant will become eligible for release on parole upon the expiration of the non-parole period on 3 December 2024.
Catchwords:
CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether the sentencing judge erred in assessing objective seriousness as high range – where only aggravating circumstances under s 61J(2) were (d) age and (e) under authority – where four particularised offences were representative in nature of multiple sexual assaults – identifying absent aggravating factors does not mitigate seriousness – finding of high range open to the sentencing judge CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether sentence manifestly excessive – where sentencing judge’s starting point close to maximum penalty – present case not worst category – sentence unreasonable – appeal allowed and applicant re-sentenced
Counsel: Mr S Fraser (Applicant) Ms M Cinque SC (Crown)
Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):
2014/357915
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
11 December 2015
Before:
Syme DCJ
File Number(s):
2014/357915
Judgment
LEEMING JA: This application for leave to appeal against the sentence of 16½ years imprisonment…
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
Mills v R [2017] NSWCCA 87
Case
[2017] NSWCCA 87
Decision Date
CaseChat Overview and Summary
Mills was convicted of persistent sexual abuse of a child, and he appealed against the sentence. The Court of Criminal Appeal considered whether the sentencing judge erred in assessing the objective seriousness of the crime as being in the high range. The only aggravating circumstances identified by the sentencing judge were the victim's age and the abuse occurring under a position of authority. The appellant argued that absent aggravating factors should mitigate the seriousness of the crime.
The court considered whether the sentence was manifestly excessive, noting that the sentencing judge's starting point was close to the maximum penalty, and the present case was not the worst category of such offences. The court concluded that the finding of high range seriousness was open to the sentencing judge, given that the four particularised offences were representative of multiple sexual assaults. The court found that the absence of other aggravating factors did not mitigate the seriousness of the crime. Ultimately, the court determined that the sentence was unreasonable and allowed the appeal, re-sentencing the appellant.