Bathurst CJ at [1]; Schmidt J at [2]; Hamill J at [3]
Decision:
(1) Leave to appeal granted. (2) Allow the appeal. (3) Quash the sentence imposed by the District Court on 14 December 2017. (4) Remit the sentencing proceedings to the District Court to be dealt with according to law.
Catchwords:
CRIMINAL LAW – appeal against sentence – sentencing of children – relevant principles of sentencing – where 13 year old commits serious sexual offences on younger relatives – offences impulsive and opportunistic – appreciation of wrongfulness of acts and consequences – whether Judge erred in assessing objective criminality – strong evidence of rehabilitation – interference with education of offender – whether Judge erred in deciding there were no alternatives to a full time custodial sentence only appropriate sentence – whether Judge erred in deciding offences involved breach of trust – emphasis on rehabilitation – various errors established
CRIMINAL LAW – sentence – sexual offence carrying life imprisonment included on Form 1– contrary to the statute – concession that proceedings miscarried – appropriate orders – remission or re-sentence?
[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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AGLC
Paul Campbell v R [2018] NSWCCA 87
Case
[2018] NSWCCA 87
Decision Date
CaseChat Overview and Summary
Paul Campbell, a 13-year-old, appealed against his conviction and sentence for serious sexual offences against younger relatives. The Supreme Court of Appeal was tasked with determining whether the primary judge erred in several respects in assessing the appropriate sentence, including the objective criminality of the offences, the availability of non-custodial alternatives, and the breach of trust inherent in the crimes.
The court examined whether the primary judge correctly assessed the degree of criminality involved, considering the impulsive and opportunistic nature of the offences. It also scrutinised the judge's conclusion that there were no non-custodial alternatives suitable for the crimes. Additionally, the court considered the judge's determination that the offences involved a breach of trust, given the familial relationship between the offender and the victims. The appeal hinged on whether these assessments were flawed and if they warranted a different outcome.
The court found that the primary judge had indeed made errors in several respects. The judge's assessment of the objective criminality was flawed, as it did not adequately account for the impulsive and opportunistic nature of the offences. The court also determined that the judge erred in concluding that no non-custodial alternatives were available. Furthermore, the court found that the breach of trust was not adequately considered in the sentencing process. These errors led the court to conclude that the proceedings miscarried, and it ordered a re-sentencing hearing. The court did not specify whether the re-sentencing should involve a remission or a complete re-sentencing, leaving that decision to the re-sentencing judge.