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RA v The King

RA v The King

Case [2024] NSWCCA 149 9 August 2024

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RA v R [2024] NSWCCA 149
Hearing dates: 03 July 2024
Date of orders: 09 August 2024
Decision date: 09 August 2024
Before: Adamson JA at [1];
Wilson J at [5];
Dhanji J at [119]
Decision:
(1) Grant leave to appeal on ground 1;
(2) Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – historic child sexual offences against own children and recent sex offences against step-grandson – application of MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 – approach to sentencing for s 66EA offences discussed – complaint of manifest excess considered

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 21A, 21B, 23, 25AA, 25D, 32, 33, 44, 53A
Crimes Act 1900 (NSW) ss 61M, 66A, 66C, 66DA, 66EA, 578A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Law Consolidation Act 1935 (SA), s 50
Criminal Legislation Amendment (Child Sexual Abuse) Bill (NSW) 2018

Cases Cited:
AA v R [2024] NSWCCA 132
AJ v R [2023] NSWCCA 158
ARS v R [2011] NSWCCA 266
Benn v R [2023] NSWCCA 24
BM v R [2023] NSWCCA 68
Bravo v R [2015] NSWCCA 302
BS v R [2021] NSWCCA 39
Cheung v Queen (2001) 209 CLR 1; [2001] HCA 67
Cheung v R [2022] NSWCCA 168
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
CMB v The AttorneyGeneral for New South Wales (2016) 256 CLR 346; [2015] HCA 9
Croxon v R [2017] NSWCCA 213
Decision Restricted [2023] NSWCCA 2
Faehringer v R [2017] NSWCCA 248
GP (a pseudonym) v R [2021] NSWCCA 180
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
Hughes v R [2018] NSWCCA 2
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Killic v the Queen (2016) 259 CLR 256; [2016] HCA 48
Lee v R [2023] NSWCCA 70
Mills v R [2017] NSWCCA 87
MJL v R [2007] NSWCCA 261
MK v R [2024] NSWCCA 127
MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Newman (a pseudonym) v R [2019] NSWCCA 157
Panetta v R [2016] NSWCCA 85
PN v R [2024] NSWCCA 86
R v Cattell [2019] NSWCCA 297; 280 A Crim R 502
R v CTG [2017] NSWCCA 163
R v D (1997) 69 SASR 413
R v Ellis (1986) 6 NSWLR 603
R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
R v Isaacs (1997) 41 NSWLR 374
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v JJ [2019] NSWCCA 148
R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59
R v…

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.

Continue reading RA v The King

Details

AGLC: RA v The King [2024] NSWCCA 149
Case: [2024] NSWCCA 149
Decision Date: 09 August 2024

CaseChat Overview and Summary

The appeal before the court involved a defendant convicted of various historical child sexual offences against his own children and more recent offences against his step-grandson. The matter was heard by the Court of Criminal Appeal of New South Wales, which was tasked with reviewing the sentence imposed by the primary judge. The defendant sought to appeal the sentence, arguing it was manifestly excessive. The legal issues centred around the correct application of sentencing principles in the context of historical child sexual offences, particularly considering recent decisions such as MK v R and RB v R.

The court considered the principles articulated in the recent decisions of MK v R and RB v R, which outlined the approach to sentencing for child sexual offences under section 66EA. The court examined whether the sentence imposed was manifestly excessive, focusing on the severity of the offences, the impact on the victims, and the principles of deterrence and denunciation. The court acknowledged the gravity of the historical offences and the recent offences, and the need to balance the sentence with the principles of proportionality and individualisation. Ultimately, the court concluded that while the offences were serious, the sentence was not manifestly excessive, as it appropriately reflected the gravity of the crimes and the need for deterrence.

The Court of Criminal Appeal held that the sentence was not manifestly excessive and dismissed the appeal. The court emphasised the importance of considering the totality of the offending and the impact on the victims. It also noted that the primary judge had appropriately exercised judicial discretion in determining the appropriate sentence. The court found that the sentence imposed was within the range of reasonable outcomes and did not represent an error in principle or a significant departure from the principles of sentencing for such offences.

No further orders were made by the court. The defendant's appeal against sentence was dismissed.

Orders