R v AB

Case [2022] NSWCCA 3 1 February 2022

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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
EG v R [2015] NSWCCA 21
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 Le [2019] NSWSC 633
R v Mauger [2012] NSWCCA 51
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
Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Regina (Appellant)
AB (Respondent)
Representation:
Counsel:
C Young (Appellant)
A Francis (Respondent)
Solicitors:
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

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.
The single ground of appeal is that…

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 AB

Details

AGLC: R v AB [2022] NSWCCA 3
Case: [2022] NSWCCA 3
Decision Date: 01 February 2022

CaseChat Overview and Summary

In the case of R v AB, the respondent pleaded guilty to two counts of sexual offences against a 14-year-old boy. The appeal to the court was brought by the Crown, who argued that the sentence imposed on the respondent was manifestly inadequate. The court had to determine if the sentencing judge erred in not recording convictions and whether the sentence was unreasonable due to its failure to reflect the objective seriousness of the offences, and the need for general deterrence, denunciation, and recognition of harm to the victim. The respondent had a history of childhood sexual abuse, and there was unchallenged medical evidence suggesting a causal link between this abuse and the respondent's offending behaviour.

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