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 factsLegislation 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 42Cases 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 532Category: Principal judgment Parties: Regina (Applicant)
AB (Respondent)Representation: Counsel:
Solicitors:
J Girdham SC (Applicant)
M Ramage QC (Respondent)
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…
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- AGLC
- R v AB [2015] NSWCCA 57
- Case
- [2015] NSWCCA 57
- Decision Date
CaseChat Overview and Summary
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
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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