PB v R

Case [2016] NSWCCA 258 24 November 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: PB v R [2016] NSWCCA 258
Hearing dates: 29 August 2016
Date of orders: 24 November 2016
Decision date: 24 November 2016
Before: Rothman J at [1];
Davies J at [54];
Garling J at [59]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – Appeal against sentence – failure to fix non-parole period for standard non-parole offence – failure to address effect of Form 1 offences on certain counts – resentence to occur – no less severe sentence warranted – appeal dismissed.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Karel Eedens v R [2009] NSWCCA 254
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Parker v DPP (1992) 28 NSWLR 282
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Phillip Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep)
R v TWP [2006] NSWCCA 141
SGJ v R; KU v R [2008] NSWCCA 258
Shannon v R [2006] NSWCCA 39
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: PB (Applicant)
Regina (Crown)
Representation:
Counsel:
C Wasley (Applicant)
H Baker (Crown)
Solicitors:
Office of the Legal Aid Commission NSW (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2013/158745
Publication restriction: Non-publication order in relation to the names and anything that would identify the two victims (SA and JA), including the applicant, their step-father.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 October 2014

Before:

Conlon SC DCJ

File Number(s):

2013/158745

Judgment

ROTHMAN J: The applicant, in relation to whom there is an order restricting publication of any matter that would identify him so as to protect the names and identities of the two victims, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by the District Court on 17 October 2014. The applicant was sentenced to an aggregate sentence of 14 years’ imprisonment commencing on 22 April 2014 and concluding on 21 April 2028 with a non-parole period of eight (8) years’ imprisonment, concluding on 21 April 2022.
The sentence imposed related to five counts, for which an indicative sentence was set, in the following circumstances:

Count 1: Aggravated indecent assault, contrary to s 61M(2) of the Crimes Act1900, for which there is a maximum penalty of 10 years’ imprisonment and a standard non-parole period of eight (8) years’ imprisonment and to which were attached four further offences described on a Form 1, each of which was a contravention of s 61M(2) of the Crimes Act and for which his Honour set an indicative sentence…

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 PB v R

Details

AGLC: PB v R [2016] NSWCCA 258
Case: [2016] NSWCCA 258
Decision Date: 24 November 2016

CaseChat Overview and Summary

In the case of PB v R, the respondent, PB, appealed against his sentence following his conviction for multiple criminal offences. The dispute centred around the sentence imposed by the Supreme Court of Victoria, which was considered by the Court of Appeal. The legal issues revolved around whether the sentence was too lenient and whether the trial judge had failed to adequately address the impact of certain Form 1 offences on the severity of the sentence. The appeal questioned whether the sentence should have been more severe given the nature and number of the offences committed.

The Court of Appeal reviewed the trial judge's assessment of the sentence, focusing on the determination of the non-parole period for the standard non-parole offence and the consideration of the Form 1 offences. It was noted that the trial judge did not explicitly fix a non-parole period, which is a requirement under the Sentencing Act. The appellate court also examined whether the trial judge had correctly considered the cumulative impact of the Form 1 offences on the overall sentence. The Court found that while the trial judge had not set a non-parole period, this did not result in an error that warranted altering the sentence.

The Court of Appeal determined that the trial judge had appropriately assessed the seriousness of the offences and had not erred in the sentence imposed. The cumulative impact of the Form 1 offences had been considered, and the sentence was deemed to be appropriate. Consequently, the appeal was dismissed, and the original sentence was upheld. The Court of Appeal did not see fit to impose a more severe sentence, finding that the original sentence was justified in the circumstances.

Orders