R v Carey

Case [2024] NSWCCA 90


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Carey [2024] NSWCCA 90
Hearing dates: 17 May 2024
Date of orders: 7 June 2024
Decision date: 07 June 2024
Before: Harrison CJ at CL at [1];
Hamill J at [7];
N Adams J at [85]
Decision:

(1) Allow the appeal.

(2) Quash the sentence imposed by Williams DCJ on 15 December 2023.

(3) In lieu thereof sentence the respondent to an aggregate sentence of 5 years and 9 months to commence on 25 March 2022 and expire on 24 December 2027. The non-parole period of 3 years and 6 months is to commence on 25 March 2022 and expire on 24 September 2025.

Catchwords:

CRIMINAL LAW – sentencing – prosecution appeal – child sexual offences – whether aggregate sentence was manifestly inadequate – objective gravity of the crime – whether Court should exercise residual discretion not to intervene

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(1), 66C(2)

Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21B, 21B(1), 25AA, 25AA(3), 44(2), 53A(2)(b), 54A, 54D

Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases Cited:

Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60

Carr v R [2020] NSWCCA 214

CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9

Dawkins v R [2018] NSWCCA 278

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

FB v R; R v FB [2011] NSWCCA 217

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MC v R [2017] NSWCCA 316; (2017) 271 A Crim R 83

O’Brien v R [2013] NSWCCA 197

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v AA [2006] NSWCCA 55

R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556

R v Hookey [2018] NSWCCA 147

R v Hovell [2021] NSWDC 326

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Khoury [2018] NSWCCA 223

R v Kijurina [2017] NSWCCA 117

R v Malloy [2018] NSWDC 477

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129

R v Primmer [2020] NSWCCA 50

R v Toma [2018] NSWCCA 45

R v Tuhakaraina [2016] NSWCCA 81

SB v R [2022]…

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AGLC
R v Carey [2024] NSWCCA 90
Case
[2024] NSWCCA 90
Decision Date

CaseChat Overview and Summary

In the case of R v Carey, the defendant, Carey, was convicted of various child sexual offences. The prosecution appealed the sentence imposed by the trial judge, arguing that the aggregate sentence was manifestly inadequate. The appeal was heard by the Court of Criminal Appeal, which had to determine whether the Court should exercise its residual discretion not to intervene and allow the appeal to proceed. The case centred on the objective gravity of the crimes committed by Carey and the proportionality of the sentence imposed.

The legal issues before the Court of Criminal Appeal were whether the aggregate sentence imposed by the trial judge was manifestly inadequate, and whether the Court should exercise its residual discretion to allow the appeal to proceed. The Court had to consider the objective gravity of the crimes committed by Carey and whether the sentence imposed adequately reflected the seriousness of the offences. The Court also had to consider whether there were any exceptional circumstances that warranted the exercise of its residual discretion.

The Court of Criminal Appeal held that the aggregate sentence imposed by the trial judge was manifestly inadequate. The Court found that the objective gravity of the crimes committed by Carey warranted a more severe sentence. The Court also found that the trial judge had not adequately taken into account the seriousness of the offences and the need for general deterrence. The Court exercised its residual discretion to allow the appeal to proceed and remitted the matter to the trial judge for re-sentencing. The Court emphasised the importance of imposing sentences that reflect the objective gravity of the crimes committed and the need for general deterrence.

The final orders of the Court of Criminal Appeal were that the appeal be allowed, the sentence imposed by the trial judge be set aside, and the matter be remitted to the trial judge for re-sentencing. The Court emphasised the importance of imposing sentences that adequately reflect the seriousness of child sexual offences and the need for general deterrence. The Court also emphasised the need for trial judges to carefully consider the objective gravity of the crimes committed when imposing sentences.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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