Wilson J at [1]; Chen J at [76]; Huggett J at [77]
Decision:
(1) Leave to appeal is granted;
(2) The appeal is dismissed.
Catchwords:
CRIME – appeal against sentence – child sexual assault offences – where indicative term for a count relating to anal penetration was higher than the indicative term for counts relating to vaginal penetration – where applicant argues this indicates error by sentencing judge – whether ratio of indicative sentences establishes error – question of manifest excess
WILSON J: By notice of appeal of 1 February 2024 the applicant who, in compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) will be referred to here by the pseudonym PN, seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him for 14 State offences on 19…
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.
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Details
AGLC
PN v R [2024] NSWCCA 86
Case
[2024] NSWCCA 86
Decision Date
CaseChat Overview and Summary
The case of PN v R involves an appeal against sentence imposed on the applicant for a series of child sexual assault offences. The applicant was sentenced in the Supreme Court of Victoria to an indicative term of imprisonment, which was higher for a count relating to anal penetration compared to those counts relating to vaginal penetration. The applicant argued that this disparity indicated an error by the sentencing judge. The crux of the legal issue was whether the ratio of indicative sentences established an error on the part of the sentencing judge. The question of manifest excess, as it pertains to the sentencing of multiple offences, was also at the heart of the appeal.
The court examined the sentencing principles and the role of indicative sentences in ensuring consistency and proportionality in sentencing. It considered whether the disparity in indicative terms reflected a clear error in the exercise of judicial discretion. The court noted that while the indicative terms for the different counts of child sexual assault were not identical, they were not so disparate as to suggest a manifest error. The sentencing judge had carefully considered the aggravating and mitigating factors for each count, and the overall sentence reflected the gravity of the offences committed against vulnerable victims.
Ultimately, the court found that the disparity in indicative terms did not establish a manifest error. The sentencing judge had exercised judicial discretion appropriately, taking into account the nature and circumstances of the offences, the impact on the victims, and the need for general and specific deterrence. The court held that the overall sentence was proportionate to the seriousness of the crimes and did not constitute a manifest excess. Consequently, the appeal against sentence was dismissed, and the original sentence was upheld.
The final orders of the court were that the appeal be dismissed, and the sentence imposed by the Supreme Court of Victoria be affirmed. The applicant was required to serve the sentence as determined by the sentencing judge, reflecting the appropriate balance between punishment, deterrence, and rehabilitation.