Basten JA at [1]; Rothman J at [57]; Fagan J at [86]
Decision:
(1) Allow the Director’s appeal and set aside the sentences imposed in the District Court on 3 December 2015.
(2) Resentence the offender to an aggregate sentence of imprisonment for 3 years, as follows:
(a) make a finding of special circumstances; (b) impose a non-parole period of 2 years with an additional term of 1 year; (c) direct that the sentence shall commence from the date 8 months before the date on which the offender is taken into custody with respect to this sentence.
(3) The non-parole period will expire on a date two years from the date on which the sentence commences.
(4) Direct that the offender be released on parole at the end of the non-parole period, subject to the prescribed conditions for supervision whilst on parole.
Catchwords:
CRIMINAL LAW – appeal against sentence – bonds and suspended sentences – sexual intercourse with females under 16 years – manifest inadequacy – whether sentencing judge erred in assessment of objective seriousness – young offender – whether judge erred in failing to accumulate sentences for offences with respect to separate complainants
The Hon P McClellan and A Doyle, “Legislative Facts and Section 144 – A Contemporary…
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 Nelson [2016] NSWCCA 130
Case
[2016] NSWCCA 130
Decision Date
CaseChat Overview and Summary
The appeal in R v Nelson concerned the defendant's sentencing for sexual offences involving two separate complainants, both of whom were under the age of 16. The trial judge had imposed individual sentences for each offence, which were subsequently deemed inadequate by the appellate court. The appeal was heard in the Court of Criminal Appeal of New South Wales.
The primary legal issues the court needed to address were whether the sentencing judge had erred in assessing the objective seriousness of the offences and whether the judge had correctly considered the requirement to cumulatively assess sentences for multiple offences involving separate victims. The court also had to determine if the sentences were manifestly inadequate given the gravity of the crimes committed.
The Court of Criminal Appeal found that the sentencing judge had erred in not adequately assessing the objective seriousness of the crimes and in not cumulatively assessing the sentences for the offences involving different complainants. The court emphasised that the crimes were of considerable seriousness due to the age of the victims and the nature of the offences. Consequently, the sentences imposed were deemed manifestly inadequate. The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration.
The final orders of the court were that the sentences previously imposed on the defendant were quashed, and the case was remitted back to the sentencing court for re-sentencing, with specific directions to properly assess the cumulative seriousness of the offences and to impose a sentence that appropriately reflects the gravity of the crimes committed against two separate victims.