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R v AB (No 2)

R v AB (No 2)

Case [2000] NSWCCA 467 6 December 2000

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Reported Decision: [2000] 117 A Crim R 473

New South Wales

Court of Criminal Appeal

CITATION: R v AB [No 2] [2000] NSWCCA 467

FILE NUMBER(S): CCA 60716/96

HEARING DATE(S): 05/10/2000

JUDGMENT DATE:
6 December 2000

PARTIES :

Regina v AB

JUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 2; Barr J at 62

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0564

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : Crown: T Buddin SC
Appellant: PR Boulten

SOLICITORS: Crown: SE O'Connor
Appellant: Greg Walsh & Co

CATCHWORDS: Criminal law - sentencing - commission of offences volunteered - extradition rights waived - pleas of guilty - appropriate discount for utilitarian value - Criminal law - sentencing - sexual offences committed by teaching brother on young pupils

LEGISLATION CITED: Criminal Appeal Act 1912 s 6(3)
Extradition Act 1988 (Commonwealth) s 42

CASES CITED:
AB v The Queen (1999) 198 CLR 111
R v Cartwright (1989) 17 NSWLR 243
CDJ v VAJ (1998-1999) 197 CLR 172
R v Davies (1978) 68 Cr App R 319
R v Foster (1992) 25 NSWLR 732
R v Gallagher (1989) 44 A Crim R 256
R v Gallagher (1991) 23 NSWLR 220
The Queen v Golding (1980) 24 SASR 161
R v Hayes (1981) 3 A Crim R 286
House v The King (1936) 55 CLR 499
R v Itamua [2000] NSWCCA 502
R v Lowe (1977) 66 Cr App R 122
Lowndes v The Queen (1998-1999) 195 CLR 665
R v Many (1990) 51 A Crim R 54
Minister for Aboriginal Affairs v Peko Wallsend Limited (1985-1986) 162 CLR 24
Pearce v The Queen (1998) 194 CLR 610
R v Perez-Vargas (1986) 8 NSWLR 559
R v Ridsdale (1995) 78 A Crim R 486
R v Thomson; R v Houlton [2000] NSWCCA 309
R v Williscroft [1975] VR 292

DECISION: See para 101

IN THE COURT OF
CRIMINAL APPEAL

60716/96

SPIGELMAN CJ
O’KEEFE J
BARR J

Wednesday, 6 December 2000

REGINA v AB [No 2]
JUDGMENT

1   SPIGELMAN CJ: I agree with Barr J.
2   O’KEEFE J:

INTRODUCTION

This matter was remitted to the Court of Criminal Appeal by an order of the High Court of Australia made on 9 September, 1999. The order directed this Court to deal with the matter in accordance with the reasons given by the High Court ( AB v The Queen (1999) 198 CLR 111). The decision to remit the matter to the Court of Criminal Appeal was by a majority of the High Court and the effect of that Court’s order has been the subject of argument before this court.
BACKGROUND

3   The appellant is now aged 49 and has been in custody since his arrest in the United States of America on 15 August, 1995. On 8 November, 1996 he was sentenced in the District Court to a head sentence of 18 years with a minimum term of 13½ years in respect of sixty seven sexual offences committed by him against fifteen…

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 (No 2)

Details

AGLC: R v AB (No 2) [2000] NSWCCA 467
Case: [2000] NSWCCA 467
Decision Date: 6 December 2000

CaseChat Overview and Summary

In this case, the appellant, AB, was charged with multiple sexual offences committed against young pupils while he was employed as a teacher. AB, represented by counsel, pleaded guilty to the charges. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for the appellant. AB's counsel argued for a discount in sentence due to the appellant's early guilty plea and the fact that he had volunteered information about the offences, thereby assisting in the investigation.

The court had to consider whether the appellant's actions warranted a discount in sentence for volunteering information and entering an early guilty plea. The court also had to determine the appropriate sentence for the gravity of the offences committed, which involved the sexual abuse of young pupils by a person in a position of trust. The High Court had to weigh the utilitarian value of the appellant's actions against the heinous nature of the offences. The court had to balance the need for deterrence and denunciation with the rehabilitative potential of the appellant.

The court held that the appellant's early guilty plea and the fact that he volunteered information about the offences were factors that could be considered in mitigation of sentence. However, the court also held that the gravity of the offences warranted a significant sentence. The court held that the appropriate sentence should reflect the serious breach of trust and the harm caused to the victims. The court held that the appropriate sentence was one of imprisonment, with a non-parole period that reflected the seriousness of the offences. The court held that the appellant's early guilty plea and the fact that he volunteered information about the offences were factors that could be taken into account in determining the length of the non-parole period.

The final orders of the court were that the appellant be sentenced to imprisonment for a term of 12 years, with a non-parole period of 8 years. The court held that this sentence reflected the seriousness of the offences and provided for the protection of the community. The court held that the appellant's early guilty plea and the fact that he volunteered information about the offences were factors that could be taken into account in determining the length of the non-parole period. The court held that the sentence was just and appropriate in all the circumstances.

Orders