R v SS

Case [2021] NSWCCA 56


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: R v SS [2021] NSWCCA 56
Hearing dates: 15 February 2021
Decision date: 09 April 2021
Before: 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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), s 35(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23

Cases Cited:

Ahmad v R [2021] NSWCCA 30

Browning v R [2015] NSWCCA 147

Buckley v R [2021] NSWCCA 6

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

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

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49

Forti v R [2016] NSWCCA 127

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

Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44

Herbert v R [2015] NSWCCA 172

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

Le v R [2019] NSWCCA 181

Lewins v R [2007] NSWCCA 189

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

Mulato v R [2006] NSWCCA 282

R v AA [2017] NSWCCA 84

R v Bell [2005] NSWCCA 81

R v CDH [2002] NSWCCA 103

R v Dodd (1991) 57 A Crim R 349

R v Ellis (1986) 6 NSWLR 603

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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.

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Background

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