R v AD

Case [2005] NSWCCA 208 9 June 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v AD [2005] NSWCCA 208

FILE NUMBER(S):
2005/501

HEARING DATE(S): 03/06/2005

JUDGMENT DATE: 09/06/2005

PARTIES:
Regina v AD

JUDGMENT OF: Studdert J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1144

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
Crown - W. Dawe QC
Applicant - J. Manuell

SOLICITORS:
S. Kavanagh - Crown
S.E. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Sentencing - juvenile offender charged with serious sexual assault offence - whether sentencing discretion miscarried by failure to refer to s 6 of Children (Criminal Proceedings) Act - whether sentence manifestly excessive having regard to the age of the offender.

LEGISLATION CITED:
Crimes Act 1900 - s 61J, 61M
Children (Criminal Proceedings) Act 1987 (NSW) - ss 3, 6, 17, Div 4 Part 3, s 18(1A), 33(1)(g)
Crimes (Sentencing Procedure) Act 1999

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/501 CCAP
STUDDERT J
HOWIE J
LATHAM J
THURSDAY 9 JUNE 2005

R v AD

Judgment

STUDDERT J: I agree with Howie J.
HOWIE J: The applicant, a juvenile, was sentenced in the District Court for an offence contrary to s 61J of the Crimes Act. That is an offence of aggravated sexual assault for which the maximum penalty prescribed is imprisonment for 20 years. Judge Ainslie-Wallace (the Judge) imposed a sentence upon the applicant made up of a non-parole period of 2 years and 6 months with a parole period of 1 year 9 months. The Judge directed that the sentence be served in a juvenile detention centre. The applicant is eligible to be released to parole on 7 September 2006. He seeks leave to appeal against that sentence.
The applicant was committed for trial to the District Court on a charge of aggravated sexual assault contrary to s 61J of the Crimes Act. Section 61J provides:
(1)          Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2)         In this section, circumstances of aggravation means circumstances in which:
(a)          at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)          at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c)          the alleged offender is in the company of another person or persons, or
(d)          the alleged victim is under the age of 16 years, or
(e)          the alleged victim is (whether generally or at the…

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 AD

Details

AGLC: R v AD [2005] NSWCCA 208
Case: [2005] NSWCCA 208
Decision Date: 9 June 2005

CaseChat Overview and Summary

The appellant, AD, was convicted of a serious sexual assault offence and sentenced to a period of imprisonment. The case before the court was an appeal against sentence, arguing that the sentencing magistrate miscarried in their discretion by failing to consider the provisions of section 6 of the Children (Criminal Proceedings) Act and that the sentence imposed was manifestly excessive in light of the offender's age. The court was required to determine whether the failure to refer to section 6 of the Act constituted a miscarriage of the sentencing discretion and whether the sentence imposed was manifestly excessive, having regard to the age of the offender.

The court examined the relevant statutory framework and the sentencing principles applicable to juvenile offenders. It noted that section 6 of the Children (Criminal Proceedings) Act requires the court to have regard to the welfare of the child, which includes their age, in sentencing. The court found that while the sentencing magistrate did not expressly refer to section 6, they had adequately considered the appellant's age and welfare in their sentencing remarks. The court concluded that the failure to expressly reference section 6 did not constitute a miscarriage of the sentencing discretion. In relation to the appellant's argument that the sentence was manifestly excessive, the court held that the sentence was within the range of appropriate penalties for the offence committed, taking into account the gravity of the offence and the need for deterrence and rehabilitation.

The court rejected the appeal against sentence, affirming the original sentencing decision. The sentence imposed on the appellant remained unchanged, reflecting the court's determination that the sentencing magistrate had appropriately exercised their discretion and that the sentence was neither excessive nor inappropriate in the circumstances.

Orders