Hoeben CJ at CL at [1]; R A Hulme J at [2]; Adamson J at [115]
Decision:
1. Crown appeal allowed.
2. Quash the sentence imposed in the District Court on 17 August 2020 and in lieu, sentence the respondent to imprisonment comprising a non-parole period of 3 years with a balance of the term of the sentence of 1 year and 6 months. That is a total sentence of 4 years and 6 months. The sentence is to date from 14 August 2020. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 13 August 2023.
3. Noting the application of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) to the child victim in the proceedings, revoke the non-publication and suppression orders made in the District Court on 14 August 2020.
Catchwords:
CRIME – appeals – appeal against sentence by Crown – recklessly causing grievous bodily harm – baby shaken like a ragdoll – finding of objective seriousness not open – discount for assistance to authorities should not have been given – failure to consider Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – misunderstanding of R v Ellis – onus on offender to establish discount for assistance to authorities – direct evidence from investigating police officers needed to prevent speculation – manifest inadequacy – resentence appropriate
SENTENCING – relevant factors on sentence – objective seriousness – baby victim and permanent brain injury important considerations
[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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AGLC
R v SS [2021] NSWCCA 56
Case
[2021] NSWCCA 56
Decision Date
CaseChat Overview and Summary
In the case of R v SS, the appellant was convicted of recklessly causing grievous bodily harm to a baby by shaking it violently, resulting in severe and permanent brain damage. The Crown appealed the sentence imposed by the District Court, arguing that the sentence was manifestly inadequate. The appeal was heard by the NSW Court of Criminal Appeal, where the appellant challenged the appropriateness of the sentence.
The central legal issues addressed by the Court were whether the District Court's finding of objective seriousness was open, and whether the sentence was manifestly inadequate. Additionally, the Court had to consider whether the discount for the appellant's assistance to the authorities was appropriately applied. The Crown argued that the District Court had not correctly applied the law when considering the objective seriousness of the offence and when determining the discount for assistance.
The Court found that the District Court's assessment of objective seriousness was not open on the facts. The Court emphasised that the objective seriousness of an offence must be assessed based on the harm caused and the circumstances of the victim, which in this case involved a baby and permanent brain injury. The Court also noted that the discount for assistance should not have been applied as the appellant failed to discharge the onus of proving such assistance under the relevant statutory provisions. The Court held that the appellant needed to provide direct evidence from investigating police officers to substantiate the claim of assistance to avoid mere speculation. Consequently, the Court concluded that the sentence was manifestly inadequate and remitted the matter to the District Court for resentencing.
The final orders of the Court were to set aside the original sentence and to remit the matter to the District Court for resentencing, ensuring that the appropriate legal principles were applied in determining both the objective seriousness and the discount for assistance.