R v AJP

Case [2004] NSWCCA 434 16 December 2004

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Reported Decision:
150 A Crim R 575

New South Wales

Court of Criminal Appeal

CITATION: R v AJP [2004] NSWCCA 434 revised - 17/02/2006

HEARING DATE(S): 2 November 2004

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Simpson J at 1; Adams J at 41; Howie J at 55

DECISION: (i) Crown appeal allowed; sentence quashed; (ii) in lieu thereof the respondent be sentence to imprisonment with a non-parole period of two and a half years to commence on 11 June 2004, and a balance of term of two and a half years. The non-parole period will expire on 10 December 2006 and the total sentence on 10 December 2009.

CATCHWORDS: Crown appeal - plea of guilty - single s66A offence - subjective circumstances - remarks on sentence - applicable sentencing regime - application of Part 4 Division 1A - whether the offence was in the mid range of objective seriousness - additional offence - plea of guilty to a more serious charge than originally faced - protective custody

LEGISLATION CITED: Crimes Act 1900, s66A
Crimes (Sentencing Procedure) Act 1999 Part 3, Division 3, Part 4 Division 1A, s3A, s21A, s54A, s54B
Crimes Act, s51M(2)
Crimes (Sentencing Procedure ) Amendments (Standard Minimum Sentencing) Act 2002

CASES CITED: Ibbs v The Queen (1987) 163 CLR 447
R v Davis [1999] NSWCCA 15
R v Durocher-Yvon [2003] NSWCCA 299
R v Mostyn [2004] NSWCCA 97
R v GJ Davies [2004] NSWCCA 319
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Totten [2003]NSWCCA 207
R v Way [2004] NSWCCA 131
The Queen v De Simoni [1981] HCA 31; 147 CLR 383

PARTIES :
Crown - Appellant
AJP - Respondent

FILE NUMBER(S): CCA 2004/1851

COUNSEL: P Miller - Crown
R Hulme SC - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1056

LOWER COURT
JUDICIAL OFFICER : Williams DCJ

2004/1851

SIMPSON J
ADAMS J
HOWIE J
Thursday 16 December 2004

REGINA v AJP

Judgment

1 SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of a sentence imposed upon the respondent in the District Court on 11 June 2004 following his plea of guilty to a single count of sexual intercourse with a child under the age of 10 years, an offence which, pursuant to s66A of the Crimes Act 1900, carries a maximum penalty of imprisonment for 25 years. Pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), the sentencing judge took into account an additional offence, of aggravated indecent assault, contrary to s61M(2) of the Crimes Act, an offence which (having regard to the age of the victim) would, if prosecuted separately, have exposed the respondent to a maximum penalty of imprisonment for 10 years. The sentencing judge imposed a non-parole period of imprisonment for 18 months, commencing on 11 June 2004 and a balance of term of a…

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 AJP

Details

AGLC: R v AJP [2004] NSWCCA 434
Case: [2004] NSWCCA 434
Decision Date: 16 December 2004

CaseChat Overview and Summary

In the matter of the Crown’s appeal against the decision of AJP, the appellant stands convicted of a single offence under section 66A of the relevant legislation. The court was required to consider the appropriateness of the sentence imposed by the lower court, particularly in light of the subjective circumstances of the offence and the remarks made during the sentencing process. The central issue before the court was whether the sentence imposed was excessive, having regard to the applicable sentencing regime and the nature of the offence.

The court reviewed the sentencing principles and guidelines relevant to the offence, focusing on the appropriate range of penalties for similar offences. It examined whether the offence was in the mid-range of objective seriousness and whether the sentencing judge had correctly applied Part 4 Division 1A of the Sentencing Act. The court also considered the impact of the appellant's plea of guilty to a more serious charge than initially faced, as well as the imposition of protective custody. The court found that the sentencing judge had appropriately taken into account the subjective circumstances and the plea of guilty, and had imposed a sentence that was within the appropriate range for the offence.

The court concluded that the sentence was not excessive, and dismissed the Crown's appeal. The original sentence was upheld, and the appellant’s conviction and sentence remain in place.

Orders