R v AB

Case [2015] NSWCCA 57 8 April 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v AB [2015] NSWCCA 57
Hearing dates: 20 November 2014
Decision date: 08 April 2015
Before: Simpson J at [1]; Price J at [54]; McCallum J at [55]
Decision:
Crown appeal dismissed

Catchwords:
APPEAL - sentencing - manslaughter - respondent found guilty after special hearing - limiting term nominated - Crown appeal against inadequacy of limiting term - Criminal Appeal Act 1912 (NSW), s 5D - Mental Health (Forensic Provisions) Act 1990 (NSW), s 22 and s 23 - appeal dismissed

CRIMINAL LAW - purpose of sentencing - Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A - purpose of limiting term is not to punish, R v Mailes [2004] NSWCCA 394

APPEAL - asserted error in finding respondent expressed remorse - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) - no such finding made by trial judge
APPEAL - asserted error in finding no risk of recidivism - finding open on the facts
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A(3)
Crimes Act 1900 (NSW), s 23, s 23A
Criminal Appeal Act 1912 (NSW), s 5D
Mental Health (Forensic Provisions) Act 1990 (NSW), s 3, s 14, s 22(1), s 23, s 42
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Mailes [2004] NSWCCA 394; 62 NSWLR 181
R v Zeilaa [2009] NSWSC 532
Category: Principal judgment
Parties: Regina (Applicant)
AB (Respondent)
Representation:
Counsel:
J Girdham SC (Applicant)
M Ramage QC (Respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Applicant)
Jeffreys Lawyers (Respondent)

File Number(s): 2010/230612
Publication restriction: Non-publication of any information or material that may lead to the identification of the child (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

Director of Public Prosecutions v AB (No 2) [2014] NSWSC 1038

Date of Decision:

7 August 2014

Before:

Adams J

File Number(s):

2010/230612

Judgment

SIMPSON J: This is an appeal under s 5D of the Criminal Appeal Act 1912 (NSW) by the Director of Public Prosecutions (“the Director”) against asserted inadequacy of sentence.

Background

On 10 July 2010 the respondent was arrested and charged with the murder of his former de facto wife earlier that day. On 3 December 2012, after a hearing pursuant to the provisions s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Forensic Provisions Act”) Bellew J found that he was unfit to be tried. A consequence of that finding was that he became a “forensic patient”: see s 3 and s 42 of the Forensic Provisions Act. He was, as is required, referred to…

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 [2015] NSWCCA 57
Case: [2015] NSWCCA 57
Decision Date: 08 April 2015

CaseChat Overview and Summary

In the case of R v AB, the appellant, the Crown, sought to appeal against the sentencing of the respondent, AB, who was found guilty of manslaughter following a special hearing. The Crown contended that the limiting term of imprisonment imposed on AB was inadequate, arguing it did not sufficiently reflect the seriousness of the offence. The appeal was heard in the New South Wales Court of Criminal Appeal.

The primary legal issues the court had to decide included whether the limiting term imposed was inadequate and whether there were errors in the trial judge's findings regarding AB's remorse and the risk of recidivism. The court had to consider the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999, particularly the purpose of the limiting term which, according to R v Mailes, is not punitive but aims to reflect the seriousness of the offence.

The Court of Criminal Appeal found that the limiting term was not inadequate as it appropriately reflected the seriousness of AB's crime. The court also dismissed the Crown's contention that the trial judge erred in finding that AB expressed remorse and that there was no risk of recidivism, holding that these findings were open to the trial judge based on the evidence presented. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders