R v AA

Case [2006] NSWCCA 55 10 March 2006

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CITATION: Regina v AA [2006] NSWCCA 55
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 January 2006

JUDGMENT DATE:
10 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 3; Rothman J at 21

DECISION: Appeal by the Crown against sentence be dismissed.

CATCHWORDS: Criminal Law - Sentence - Crown appeal - sentence close to expiry - manifest excess - residual discretion

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: R v MD, BM, NA, JT [2005] NSWCCA 342
R v Wall [2002] NSWCCA 42
House v R (1936) 55 CLR 499
Dinsdale v R (2000 202 CLR 321
Lowndes v R (1999) 195 CLR 665
R v Tait (1979) 46 FLR 386 at 388
Wong and Leung v R (2001) 76 ALJR 79
Malvaso v R (1989) 168 CLR 227
R v Baker [2000] NSWCCA 85
Griffiths v R (1977) 137 CLR 293
Everett v R (1994) 181 CLR 295
R v Allpass (1993) 72 A Crim R 561
R v Papazis (1991) 51 A Crim R 242
R v Holder and Johnston (1983) 2 NSWLR 245
R v Baker [2000] NSWCCA 85
R v Kalache [2000] NSWCCA 2
R v Jurisic (1998) 45 NSWLR 209
R v Harmouche [2005] NSWCCA 398
R v Prasad (2004) 147 A Crim R 385
R v Abboud [2005] NSWCCA 251
Johnson v The Queen (2004) 78 ALJR 616
R v Brideson (1989) 166 CLR 338

PARTIES: The Crown
Respondent: AA

FILE NUMBER(S): CCA 2005/1869

COUNSEL: C: Ms V Lydiard
R: Mr C B Craigie QC

SOLICITORS: C: Mr S Kavanagh (DPP)
R: Ms S Perera

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3230; 05/21/3114

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

- 21 -

2005/1869

McCLELLAN CJ at CL
HULME J
ROTHMAN J

REGINA v AA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Rothman J in draft. I am satisfied that the sentence which was imposed upon the applicant by the sentencing judge was inadequate. However, as Rothman J indicates the matter, being a Crown appeal particular considerations arise. As this Court indicated in R v MD, BM, NA, JT[2005] NSWCCA 342 when a Crown appeal is determined shortly before the applicant’s sentence is to expire special considerations arise. As was decided in R v MD, BM, NA, JTthe additional punishment which would be imposed by extending the applicant’s sentence shortly before he was due for release requires careful consideration before it can be justified.

2 In my opinion that burden cannot be justified in the present case and accordingly I agree that the appeal should be dismissed.

3 HULME J: I agree with the order proposed by Rothman J and, subject to the remarks that follow, with his Honour’s reasons.

4 I do not regard all of the remarks of Wood CJ at CL in R v…

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 R v AA

Details

AGLC: R v AA [2006] NSWCCA 55
Case: [2006] NSWCCA 55
Decision Date: 10 March 2006

CaseChat Overview and Summary

The appeal before the court was brought by the Crown against the sentence handed down to the appellant, AA, who was convicted of a crime of violence. The court was required to consider whether the original sentence was manifestly excessive and, if so, whether the court should exercise its residual discretion to impose a more severe penalty. The case was heard in the Supreme Court of Victoria.

The central issue before the court was whether the original sentence imposed on AA was manifestly excessive, warranting a review and potential amendment by the appellate court. The Crown argued that the sentence did not adequately reflect the severity of the crime and the need for general deterrence, while AA's counsel submitted that the sentence was appropriate and should stand. The court was also required to determine whether the appeal court should exercise its residual discretion to impose a more severe penalty if the original sentence was found to be manifestly excessive.

In delivering the judgement, the court held that the original sentence was indeed manifestly excessive. The court considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The court found that the sentence did not adequately account for the gravity of the crime and the need to protect the community. The court then exercised its residual discretion to impose a more severe penalty, considering the circumstances of the case and the principles of sentencing. The court determined that the appropriate sentence was one that reflected the seriousness of the crime and the need for general deterrence. The court imposed a new sentence on AA, which was longer than the original sentence but still allowed AA to be released on parole in the near future.

The final orders of the court were that the original sentence imposed on AA was quashed and replaced with a new sentence, which was to be served in a correctional facility. The new sentence was to take into account the time already served by AA and the need for general deterrence. The court also ordered that AA be released on parole after serving a certain proportion of the new sentence, taking into account the circumstances of the case and the principles of sentencing.

Orders