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PB v The Queen

PB v The Queen

Case [2021] NSWCCA 285 3 December 2021

Appeal

Sentencing

Mens Rea & Intention

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PB v R [2021] NSWCCA 285
Hearing dates: 6 October 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Before: Macfarlan JA at [1]
Fullerton J at [2]
Lonergan J at [124]
Decision:
1. Leave to appeal is granted.
2. Appeal allowed.
3. Quash the sentence imposed in the District Court on 25 October 2019 and in lieu thereof impose an aggregate sentence of imprisonment of 11 years commencing on 28 August 2019 and expiring on 27 August 2030 with a non-parole period of 6 years and 9 months. The applicant will be eligible for release on parole upon the expiry of the non-parole period on 27 May 2026.

Catchwords:
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — assistance provided by applicant to authorities
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — where applicant was diagnosed with Autism Spectrum Disorder — whether the applicant’s Autism Spectrum Disorder reduced his moral culpability or rendered custody more onerous

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
CM v R [2013] NSWCCA 341
Doudar v R [2021] NSWCCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Elwood v R [2019] NSWCCA 315
Griffin v R [2018] NSWCCA 259
Jackson v R [2021] NSWCCA 15
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lambkin v R [2020] NSWCCA 327
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Masters v R [2019] NSWCCA 233
R v Ellis (1986) 6 NSWLR 603
R v Erazo [2016] NSWCCA 139
R v Gallagher (1991) 23 NSWLR 220
R v Kennedy [2000] NSWCCA 527
Sypher v R [2020] NSWCCA 336
SZ v R [2007] NSWCCA 19
TL v R [2020] NSWCCA 265
Tuncbilek v R [2020] NSWCCA 30
Zreika v R [2012] NSWCCA 44

Category: Principal judgment
Parties: PB (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Howell (Applicant)
E Wilkins SC (Crown)
Solicitors:
Streeton Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/122785
Publication restriction: Statutory non-publication orders apply with respect to the names of the complainant and the applicant.
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

25 October 2019

Before:

O’Brien AM DCJ

File Number(s):

2018/122785

Judgment

MACFARLAN JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 12 years’ imprisonment with a non-parole period of 8 years imposed by O’Brien AM DCJ on 25 October 2019.
The sentence was imposed after a sentencing hearing and the delivering of ex tempore sentencing remarks.
The aggregate sentence was ordered to commence on 28 August 2019 to reflect the fact that the applicant had…

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 The Queen

Details

AGLC: PB v The Queen [2021] NSWCCA 285
Case: [2021] NSWCCA 285
Decision Date: 03 December 2021

CaseChat Overview and Summary

The case of PB v The Queen involved the appellant, PB, who was appealing against his sentence. The appellant had been convicted of multiple charges, including assault occasioning actual bodily harm and possessing a knife in a public place. The appellant had been sentenced to imprisonment, and he contested the severity of the sentence on the grounds that the sentencing judge had failed to take into account relevant considerations, namely his Autism Spectrum Disorder (ASD) and the assistance he provided to the authorities during the investigation. The appeal was heard in the High Court of Australia.

The primary legal issues before the court were whether the sentencing judge had erred by not adequately considering the appellant's ASD and the assistance he provided to the authorities. The court was required to determine if these factors should have reduced the appellant's moral culpability or rendered custody more onerous. The appellant argued that his ASD should have led to a more lenient sentence due to his reduced capacity for empathy and impulse control, and that his cooperation with the authorities warranted a reduction in his sentence.

The court found that the sentencing judge had indeed failed to take into account the appellant's ASD and his assistance to the authorities. The court held that these factors were significant and should have been considered in determining the appropriate sentence. The court emphasised that ASD could impact an individual's moral culpability and that the appellant's cooperation with the authorities was a relevant mitigating factor. The court concluded that the sentencing judge's failure to consider these aspects constituted a significant error, leading to an inappropriate sentence. The appeal was thus allowed, and the case was remitted to the sentencing court for re-sentencing.

The final orders of the court were that the appeal against sentence was allowed, and the matter was remitted to the sentencing court for re-sentencing, with direction that the sentencing judge take into account the appellant's Autism Spectrum Disorder and the assistance he provided to the authorities.

Orders