Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v AB [2022] NSWCCA 3 Hearing dates: 27 August 2021 Date of orders: 1 February 2022 Decision date: 01 February 2022 Before: Meagher JA; Wright J; Fagan J Decision: Appeal dismissed.
Catchwords: CRIMINAL LAW – Crown appeal against sentence – manifest inadequacy – where respondent pleaded guilty to sexual offences against 14 year old boy – where respondent a victim of childhood sexual abuse – where unchallenged medical evidence indicated causal link between childhood abuse and offending – where respondent sentenced without proceeding to conviction – whether unreasonable or plainly unjust for sentencing judge not to have recorded convictions – whether sentence unreasonable for not reflecting objective seriousness of offending and need for general deterrence, denunciation and recognition of harm to victim
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Crimes Act 1900 (NSW), ss 61O(2A), 66C(3), 91G(2)(a), 578A(2)
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Procedure Act 1986 (NSW)
Cases Cited: Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Hoffenberg v District Court of New South Wales [2010] NSWCA 142
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Ingrassia (1997) 41 NSWLR 447
R v McInerney (1986) 42 SASR 111; (1986) 28 A Crim R 318
R v ZB [2021] QCA 9; (2021) 287 A Crim R 519
Re Attorney General’s Application under Section 37 (No. 3 of 2002) (NSW) (2004) 61 NSWLR 305; [2004] NSWCCA 303
Category: Principal judgment Parties: Regina (Appellant)
AB (Respondent)Representation: Counsel:
Solicitors:
C Young (Appellant)
A Francis (Respondent)
Solicitor for Public Prosecutions (NSW) (Appellant)
McWilliams Lawyers (Respondent)
File Number(s): 2019/216935 Publication restriction: Pseudonyms used for the respondent (“AB”) and complainant (“AS”).
Pursuant to Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), publication of any matter which identifies or is likely to identify the complainant AS in connection with this proceeding, or the respondent AB in connection with earlier proceedings for offences committed by members of his family in respect of which AB was a complainant and/or witness, is prohibited.Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 15 February 2021
- Before:
- Wass SC DCJ
- File Number(s):
- 2019/216935
Judgment
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THE COURT: This is a Crown appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5D against the sentence imposed on the respondent (“AB”) by her Honour Judge Wass SC (the sentencing judge) in the District Court on 15 February 2021.
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The single ground of appeal is that…
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- AGLC
- R v AB [2022] NSWCCA 3
- Case
- [2022] NSWCCA 3
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge erred in not recording convictions for the respondent, despite the pleas of guilty. Additionally, the court needed to assess if the sentence imposed was unreasonable because it did not adequately reflect the objective seriousness of the offences, and whether it failed to meet the objectives of general deterrence, denunciation, and recognition of harm to the victim. The Crown argued that the sentence did not appropriately address these considerations, while the respondent's legal team contended that the sentence was appropriate given the mitigating factors.
The court found that the sentencing judge's failure to record convictions did not constitute an error, as the absence of convictions did not affect the substantive outcome for the respondent. However, the court did find that the sentence imposed was unreasonable as it did not sufficiently reflect the objective seriousness of the offences, and did not adequately address the need for general deterrence, denunciation, and recognition of harm to the victim. The court noted that while the respondent's history of childhood sexual abuse was a relevant mitigating factor, it did not absolve the court of its responsibility to impose a sentence that met these objectives. Consequently, the Crown's appeal was upheld, and the case was remitted to the sentencing court for re-sentencing.
The final orders of the court included the remission of the case to the sentencing court for the purpose of re-sentencing the respondent. The court emphasised the need for the new sentence to adequately reflect the objective seriousness of the offences, and to meet the objectives of general deterrence, denunciation, and recognition of harm to the victim. The court also confirmed that the failure to record convictions did not constitute an error in this case, and did not affect the substantive outcome for the respondent.
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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