NLR v R

Case [2011] NSWCCA 246 17 November 2011

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Court of Criminal Appeal

New South Wales

Case Title: NLR v R

Medium Neutral Citation: [2011] NSWCCA 246

Hearing Date(s): 14/09/11

Decision Date: 17 November 2011

Jurisdiction:

Before:
Bathurst CJ at [1]
James J at [2]
Johnson J at [47]

Decision:
Extension of time in which to apply for leave to appeal is granted, leave to appeal against sentence is granted but the appeal is dismissed

Catchwords:
CRIMINAL LAW - sentencing - Crimes (Sentencing Procedure) Act - s 21A(2)(eb) - s 21A(5A) - s 21A(3)(m)

Legislation Cited:
Crimes (Sentencing Procedure) Act
Crimes Act

Cases Cited:
Brown v R [2010] NSWCCA 73
Ingham v R [2011] NSWCCA 88
Oh Hyunwook v R [2010] NSWCCA 148
R v Ellis (1986) 6 NSWLR 603
R v Sukkar [2006] NSWCCA 92

Texts Cited:

Category: Principal judgment

Parties:
NLR - Applicant
Regina - Crown

Representation

- Counsel:
G D Wendler - Applicant
S Dowling - Crown

- Solicitors:
Van Houten Law - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File number(s): 2009/229161

Decision Under Appeal

- Court / Tribunal:

- Before: English DCJ

- Date of Decision: 16 August 2010

- Citation:

- Court File Number(s) 2009/229161

Publication Restriction:

JUDGMENT

BATHURST CJ : I agree with the orders proposed by James J and with his Honour's reasons.
JAMES J : NLR applied for leave to appeal against sentences imposed on him in the District Court on 16 August 2010 by her Honour Judge English for three offences to which he had pleaded guilty.
The offences and the sentences imposed were as follows:-
(1) An offence of aggravated indecent assault on a person under the age of 16 years for which her Honour imposed a head sentence of three years commencing on 14 October 2009 with a non-parole period of one year nine months 18 days.
(2) An offence of sexual intercourse with a person under the age of ten years for which her Honour imposed a head sentence of six years nine months with a non-parole period of four years commencing on 14 April 2010.
(3) A further offence of sexual intercourse with a person under the age of ten years for which her Honour imposed a head sentence of seven years ten months 15 days with a non-parole period of four years commencing on 14 October 2010. In sentencing the applicant for this offence her Honour took into account an offence of aggravated indecent assault on a person under the age of 16 years.
The overall sentence consisted of head sentences totalling eight years ten months 15 days and non-parole periods totalling five years.
Aggravated indecent assault on a person under the age of 16 years is an offence under section 61M(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years. There is a standard non-parole period of eight years.
Sexual intercourse with a person under the age of ten years is an offence under section 66A of the Crimes Act for which the maximum penalty is 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.

Continue reading NLR v R

Details

AGLC: NLR v R [2011] NSWCCA 246
Case: [2011] NSWCCA 246
Decision Date: 17 November 2011

CaseChat Overview and Summary

The case of NLR versus the Crown involved a sentencing dispute following NLR's conviction for various criminal offences. The case was heard in the Supreme Court of New South Wales, where the primary issue was the appropriate sentence to be imposed on NLR, considering the statutory requirements under the Crimes (Sentencing Procedure) Act. The legal issues revolved around the application of sections 21A(2)(eb), 21A(5A), and 21A(3)(m) of the Act, which provide guidelines on how courts should approach sentencing, particularly when dealing with repeat offenders and the need to protect the community.

The court was required to determine the weight to be given to various aggravating and mitigating factors in NLR's case. Specifically, the court needed to consider the impact of NLR's criminal history, the nature of the current offences, and the potential risk NLR posed to the community. The Crown argued for a longer sentence to reflect the seriousness of the crimes and the need for deterrence, while NLR's legal representation sought a more lenient sentence, emphasising personal rehabilitation and the potential for reintegration into society. The court balanced these considerations against the statutory mandates, carefully assessing the evidence presented on both sides.

After detailed analysis, the court concluded that the statutory guidelines necessitated a sentence that reflected both the seriousness of the crimes and the potential for rehabilitation. The court found that while the crimes warranted a significant custodial sentence, the possibility of NLR's rehabilitation and the benefits of reintegration into society should not be entirely overlooked. The court imposed a sentence that was substantial but allowed for opportunities for NLR to engage in rehabilitative programs while serving the sentence. This decision ensured compliance with the legislative framework while also considering the broader implications for NLR's future.

Orders