Adamson J at [1] Bellew J at [2] Lonergan J at [183]
Decision:
(1) The Crown appeal against sentence is allowed.
(2) The aggregate sentence imposed on the respondent in the District Court of New South Wales is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate term of 15 years imprisonment commencing on 6 November 2019 and expiring on 5 November 2034.
(4) Specify a non-parole period of 11 years and 3 months imprisonment, commencing on 6 November 2019 and expiring on 5 February 2031.
Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Crown appeal asserting manifest inadequacy of sentence – Multiple instances of sexual and related offending committed over a lengthy period of time on eight separate victims – Consistently predatory behaviour on the part of the respondent – Some of the offending planned – Serious breach of a position of trust towards the victims – Aggregate sentence of imprisonment for 10 years imposed with a non-parole period of 6 years and 6 months – Where Crown relied upon latent error – Where errors were identified in the reasons of the sentencing judge but not relied upon by the Crown – Factual errors and omissions – Inadequate reasons – Failure to properly assess the objective seriousness of the offending – Displacement between findings as to objective seriousness and indicative sentences – Brevity of the individual instances of offending of limited relevance – Necessity to apply the correct approach when sentencing for an offence to which a Form 1 attaches – Apparent error in not treating the fact that one episode of offending occurred in the victim’s home as an aggravating circumstance – Lack of clarity as to what aggravating circumstances were in fact taken into account – Confusion between matters which are relevant to the assessment of an offender’s subjective case and those which might justify a finding of special circumstances – Where the sentence imposed failed to recognise the fundamental purposes of sentencing – Necessity for the Court to intervene in order to maintain public confidence in the criminal justice system – Crown appeal allowed – Sentence quashed and the respondent re-sentenced
[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.
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Details
AGLC
R v Lau [2022] NSWCCA 131
Case
[2022] NSWCCA 131
Decision Date
CaseChat Overview and Summary
The case of R v Lau involved a respondent who had been convicted of multiple instances of sexual and related offending committed over a considerable period of time against eight separate victims. The Court of Appeal for the State of New South Wales was tasked with reviewing the sentence imposed by the trial judge. The Crown appealed the sentence, asserting that it was manifestly inadequate given the nature and extent of the respondent's offending, which included predatory behaviour, some of which was premeditated, and a serious breach of trust towards the victims. The aggregate sentence imposed was imprisonment for 10 years with a non-parole period of 6 years and 6 months.
The legal issues before the court centred on whether the sentence was manifestly inadequate and whether the trial judge had applied the correct principles and approach in sentencing. The Crown argued that the sentence did not adequately reflect the objective seriousness of the offending and failed to recognise the fundamental purposes of sentencing. The Crown relied on latent error, pointing to factual errors and omissions in the sentencing judge's reasons, as well as an inadequate assessment of the objective seriousness of the offending. The Crown also argued that the sentence did not align with the indicative sentences provided for the offences and that there was confusion between matters relevant to the offender's subjective case and those that might justify special circumstances.
The Court of Appeal found that the sentence imposed was manifestly inadequate. The reasoning of the trial judge contained factual errors and omissions, and the reasons were inadequate in properly assessing the objective seriousness of the offending. The Court noted a displacement between the findings as to the objective seriousness of the offending and the indicative sentences, and found that the brevity of the individual instances of offending was of limited relevance. The Court also found an apparent error in not treating the fact that one episode of offending occurred in the victim's home as an aggravating circumstance. The Court was further concerned by a lack of clarity as to what aggravating circumstances were in fact taken into account and confusion between matters relevant to the offender's subjective case and those that might justify special circumstances. The Court concluded that the sentence failed to recognise the fundamental purposes of sentencing and that intervention was necessary to maintain public confidence in the criminal justice system.
The Crown appeal was allowed, and the sentence was quashed. The respondent was re-sentenced by the Court of Appeal.