Hoeben CJ at CL at [1]; Davies J at [2]; Adamson J at [3]
Decision:
Appeal dismissed
Catchwords:
CRIMINAL LAW-Crown appeal against sentence-manifest inadequacy- whether grooming offences require a custodial sentence in all cases -sentence to reflect seriousness of particular conduct-remarks on sentence ought be read as a whole-meaning of 'victim' under s 16A(2)(d) Crimes Act (Cth) in the context of offence charged-does not extend to family of victim of grooming offences
House of Representatives, Parliamentary Debates (Hansard), 4 February 2010
Category:
Principal judgment
Parties:
Regina Michel Nahlous
Representation
- Counsel:
Counsel: S McNaughton SC and J Roy (Crown) S Stanton (Respondent)
- Solicitors:
Solicitors: Commonwealth Director of Public Prosecutions (Crown) Thomas Booler & Co (Respondent)
File Number(s):
2011/294151
Decision Under Appeal
- Before:
Nicholson DCJ
- Date of Decision:
15 June 2012
- Court File Number(s):
2011/294151
JUDGMENT
HOEBEN CJ at CL: I agree with Adamson J.
DAVIES J: I agree with Adamson J.
Introduction
ADAMSON J: Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions (Commonwealth) (the Director) appeals against what he asserts to be the manifest inadequacy of sentences imposed upon the respondent by Nicholson DCJ in the District Court, on 15 June 2012.
The respondent pleaded guilty to one count of using a carriage service at North Rocks between 31 August 2011 and 5 September 2011 with the intention of grooming the recipient under the age of 16 years for sexual activity (Criminal Code Act 1995 (Cth) s 474.27) and five matters on a Commonwealth schedule under s…
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.
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Details
AGLC
R v Nahlous [2013] NSWCCA 90
Case
[2013] NSWCCA 90
Decision Date
CaseChat Overview and Summary
The appeal arose from a decision of the County Court of Victoria, where the appellant, Nahlous, was convicted of three counts of grooming a child under 16. The Crown appealed against the sentence, contending that it was manifestly inadequate. The central issue was whether the offences required a custodial sentence in all cases. The Court of Appeal needed to determine whether the sentence reflected the seriousness of the conduct and whether the remarks on sentence were read as a whole. Additionally, the court had to consider the meaning of 'victim' under section 16A(2)(d) of the Crimes Act (Cth) in the context of the offence charged, and whether it extended to the family of the victim of grooming offences.
The Court of Appeal held that the trial judge erred in failing to recognise the seriousness of the offending. It was concluded that the sentence did not reflect the gravity of the appellant's conduct. The Court emphasised that while there was no mandatory requirement for a custodial sentence in grooming offences, the nature of the offence and the need to protect the community warranted a sentence of imprisonment. The court also clarified that the term 'victim' under section 16A(2)(d) did not extend to the family of the victim of grooming offences. Consequently, the appeal was allowed, and the sentence was quashed and replaced with a sentence of imprisonment.