PN v R

Case [2024] NSWCCA 86


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: PN v R [2024] NSWCCA 86
Hearing dates: 17 April 2024
Date of orders: 5 June 2024
Decision date: 05 June 2024
Before: 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

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 9, 33, 53A

Crimes Act1900 (NSW), ss 66A, 66DA, 66EB, 91G

Crimes Act 1914 (Cth), ss 16B, 16BA

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Code Act 1995 (Cth), s 474.22A

Cases Cited:

AJ v R [2023] NSWCCA 158

Clarke v R [2023] NSWCCA 170

Cullen v R [2014] NSWCCA 162

Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153

Grange v R [2023] NSWCCA 6

Hraichie v R [2022] NSWCCA 155

JM v R [2014] NSWCCA 297

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Maxwell v R [2020] NSWCCA 94

Obeid v R (2017)96 NSWLR 155; [2017] NSWCCA 221

PC v R [2022] NSWCCA 107

R v BH [2023] NSWCCA 278

R v Clarke [2013] NSWCCA 260

R v CMB [2014] NSWCCA 5

R v Gavel [2014] NSWCCA 56

R v JJ [2009] NSWCCA 148

R v M.A.K., R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v MJB [2014] NSWCCA 195

R v Van Ryn [2016] NSWCCA 1

R v Wheeler [2000] NSWCCA 34

R v Cahyadi (2007) 168 A Crim R 41; [2007] NSWCCA 1

Ryan v R [2019] NSWCCA 200

Salama v R [2023] NSWCCA 141

SW v R [2013] NSWCCA 255

Category:Principal judgment
Parties: PN (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Odgers SC (Applicant)
A Bonnor (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Director of Public Prosecutions (Respondent)
File Number(s): 2021/00251576
Publication restriction: Statutory non-publication order in relation to complainant
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

[2023] NSWDC 170

Date of Decision:
19 May 2023
Before:
Coleman SC DCJ
File Number(s):
2021/00251576

JUDGMENT

  1. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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