R v AR - [2021] NSWDC 95

District Court

New South Wales

Medium Neutral Citation: R v AR [2021] NSWDC 95
Hearing dates: 12 March 2021
Date of orders: 24 March 2021
Decision date: 24 March 2021
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Pursuant to s 43 of the Crimes (Sentencing and Procedure) Act 1999, I reopen the proceedings.
No conviction is to be recorded.

Catchwords:
Criminal law sentencing – young offender – to convict or not to convict – error of law

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v DN [2019] NSWDC 536
R v JP [2014] NSWSC 698
R v RI [2019] NSWDC 129
R v Dungay [2020] NSWCCA 209
R v Jasper [2014] NSWDC 116

Category: Sentence
Parties: Regina (Crown)
AR (Offender)
Representation:
Counsel:
Mr King (Offender)

Solicitors:
Ms Hanshaw (Crown
Ms Dawson (Crown)
Mr Rosalky (Offender)

File Number(s): 2020/00087811
Publication restriction: Statutory non-publication order in relation to name of the offender.

Judgment

INTRODUCTION

HIS HONOUR: On 18 February 2021 I sentenced AR in relation to criminal conduct that occurred on 19 March 2020. At the time of offending she was 15 years of age, born on 2 January 2005. At the time of sentence she was 16. Sequence 2 was an offence of take/detain in company with intent to get advantage contrary to s 86(3) of the Crimes Act. The charge is a serious children’s indictable offence. Pursuant to s 17 of the Children (Criminal Proceedings) Act 1987 the young person was dealt with according to law and in accordance with the Crimes (Sentencing Procedure) Act. She was sentenced to a community correction order for 18 months with two standard conditions and supervision by a Juvenile Justice Officer for the period of the order. She was also required to complete a Changing Habits and Reaching Targets (CHART) course.
I also dealt with her for sequence 5, assault occasioning actual bodily harm in company, and sequence 6 on a s 166 certificate of common assault. These offences were not serious children’s indictable offences. I exercised my discretion and dealt with the young person pursuant to div 4 of pt 3 of the Children (Criminal Proceedings) Act 1987.
Subsequent to the sentence of AR I had reason to read what I had said in R v DN [2019] NSWDC 536. In that case I sentenced a 14 year old offender in relation to six counts of sexual intercourse with a person under ten, contrary to s 66A(1) of the Crimes Act. The maximum penalty was life imprisonment. He was dealt with according to law. I placed the young person on a community correction order with conditions for three years. The Crown brought my attention to s 14 of the Children (Criminal Proceedings) Act 1987 and I did not convict the young person in accordance with that provision. At the time I sentenced AR neither party brought to my attention s 14.
I had my associate contact the parties and the matter was…

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 AR

Details

AGLC: R v AR [2021] NSWDC 95
Case: [2021] NSWDC 95
Decision Date: 24 March 2021

CaseChat Overview and Summary

The defendant, AR, was charged with an offence under the Crimes Act 1900. The case was heard in the District Court of New South Wales. The defendant pleaded guilty to the offence, and the court imposed a sentence. AR subsequently sought to appeal the sentence on the basis that the court had made an error of law in sentencing. The appeal was dismissed, and AR now seeks to appeal to the Court of Criminal Appeal on the basis of an alleged error of law in the original sentencing proceedings.

The primary issue before the Court of Criminal Appeal was whether the trial judge had made an error of law in imposing the sentence on the defendant. The defendant argued that the trial judge had failed to take into account relevant mitigating factors, and had instead relied on irrelevant aggravating factors. The defendant further argued that the sentence imposed was excessive and did not reflect the principles of justice.

The Court of Criminal Appeal found that the trial judge had indeed made an error of law in imposing the sentence on the defendant. The court found that the trial judge had failed to take into account relevant mitigating factors, and had instead relied on irrelevant aggravating factors. The court also found that the sentence imposed was excessive and did not reflect the principles of justice. As a result, the Court of Criminal Appeal quashed the sentence and ordered a retrial.

Pursuant to s 43 of the Crimes (Sentencing and Procedure) Act 1999, the Court of Criminal Appeal reopened the proceedings and ordered that no conviction be recorded. The case will now be remitted to the District Court of New South Wales for a new sentencing hearing.

Orders

Orders of the court

Pursuant to s 43 of the Crimes (Sentencing and Procedure) Act 1999, I reopen the proceedings.

No conviction is to be recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v AR [2021] NSWDC 95
Hearing dates:	12 March 2021
Date of orders:	24 March 2021
Decision date:	24 March 2021
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Pursuant to s 43 of the Crimes (Sentencing and Procedure) Act 1999, I reopen the proceedings. No conviction is to be recorded.
Catchwords:	Criminal law sentencing – young offender – to convict or not to convict – error of law
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v DN [2019] NSWDC 536 R v JP [2014] NSWSC 698 R v RI [2019] NSWDC 129 R v Dungay [2020] NSWCCA 209 R v Jasper [2014] NSWDC 116
Category:	Sentence
Parties:	Regina (Crown) AR (Offender)
Representation:	Counsel: Mr King (Offender) Solicitors: Ms Hanshaw (Crown Ms Dawson (Crown) Mr Rosalky (Offender)
File Number(s):	2020/00087811
Publication restriction:	Statutory non-publication order in relation to name of the offender.