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NG v The King

NG v The King

Case [2024] NSWCCA 142 2 August 2024

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NG v R [2024] NSWCCA 142
Hearing dates: 12 July 2024
Date of orders: 02 August 2024
Decision date: 02 August 2024
Before: Adamson JA at [1];
Wilson J at [2];
Faulkner J at [69]
Decision:
(1) Extend the time in which to file the application for leave to appeal to 9 May 2024;
(2) Grant leave to appeal;
(3) Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – child sexual offences and sexual assault offence – where applicant sentenced for other historic and non-historic child sex offences in 2016 and subject offences pre and post-dated those offences –whether sentence judge erred in findings of objective seriousness – whether principle of totality breached by superimposing new sentence on existing sentence – whether aggregate sentence is manifestly excessive
CRIME – appeal against sentence – leave to appeal out of time sought – delay due to COVID pandemic

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
Crimes Act 1900 (NSW), ss 61I, 61M, 66A, 578A

Cases Cited:
BM v R [2023] NSWCCA 68
Bravo v R [2015] NSWCCA 302
Faehringer v R [2017] NSWCCA 248
Higgins v R [2020] NSWCCA 169
JG v R [2023] NSWCCA 33
Martellotta v R [2021] NSWCCA 168
McDowall v R [2019] NSWCCA 29
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Mills v R [2017] NSWCCA 87
Mulato v R [2006] NSWCCA 282
NG v R [2017] NSWCCA 161
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v CTG [2017] NSWCCA 163
R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
Thorp v R [2022] NSWCCA 180
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Category: Principal judgment
Parties: NG (Applicant)
Rex (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/00135037
Publication restriction: Publication of any matter which could identify the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 August 2021

Before:

Culver DCJ

File Number(s):

2020/00135037

JUDGMENT

ADAMSON JA: I agree with Wilson J.
WILSON J: The applicant, NG, pleaded guilty on 22 April 2021 to three sexual assault offences before the Central Local Court and was committed to the District Court for sentence. In compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), and to protect the victims of his earlier crimes, the applicant will be referred to by the pseudonym NG. The victims of the present offending are entitled by law to privacy, and their names have also been anonymised.
The offences to which the applicant pleaded guilty, two 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 NG v The King

Details

AGLC: NG v The King [2024] NSWCCA 142
Case: [2024] NSWCCA 142
Decision Date: 02 August 2024

CaseChat Overview and Summary

The case of NG v The King was heard by the High Court of Australia. The applicant, NG, appealed against a sentence imposed by the Supreme Court of South Australia for child sexual offences and a sexual assault offence. NG had previously been sentenced in 2016 for other historic and non-historic child sex offences. The subject offences both predated and postdated those prior offences. The central issues before the High Court were whether the sentencing judge had erred in assessing the objective seriousness of the subject offences, whether the principle of totality was breached by superimposing a new sentence on an existing sentence, and if the aggregate sentence was manifestly excessive.

The High Court found that the sentencing judge had not erred in assessing the objective seriousness of the subject offences. The Court noted that the sentencing judge had carefully considered the nature and gravity of the offences, the degree of culpability, and the impact on the victims. The Court held that the principle of totality was not breached as the sentencing judge had taken into account the existing sentence when determining the sentence for the subject offences. The Court also found that the aggregate sentence was not manifestly excessive, as it reflected the seriousness of the offences and the need for deterrence and denunciation.

The Court further addressed the issue of leave to appeal out of time, which NG sought due to delays caused by the COVID-19 pandemic. The Court held that the extraordinary circumstances of the pandemic could justify an extension of time for the appeal. As a result, the Court granted leave to appeal out of time.

Orders