Richards v R

Case [2023] NSWCCA 107


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Richards v R [2023] NSWCCA 107
Hearing dates: 10 May 2023
Decision date: 19 May 2023
Before: Beech-Jones CJ at CL [1]; Adamson JA at [11]; Price J at [121]
Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against sentence — Historical sex offences — whether sentencing judge took adequate account of delay

CRIME — Appeals — Appeal against sentence —finding of special circumstances — applicant previously sentenced for historical sex offences - principle of totality — whether total term of continuous imprisonment excessive and parole period inadequate — whether sentencing judge erred by failing to backdate commencement of sentence — alleged manifest excess

CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in finding evidence of post-offence good character of little weight

CRIME — Appeals — Appeal against sentence — distinction between lack of further convictions and finding that offending behaviour ceased

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 25AA, 44(2B), 47(2)(a)

Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61E(1A), 80, 81, 81A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

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

House v The King (1936) 55 CLR 499; [1936] HCA 40

JL v R [2023] NSWCCA 99

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kerr v R [2016] NSWCCA 218

Lonsdale v R [2020] NSWCCA 267

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Baker [2000] NSWCCA 85

R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep)

R v Knight [2005] NSWCCA 241; (2005) 155 A Crim R 252

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Nightingale [2005] NSWCCA 147

R v Obbens [2022] NSWCCA 109

R v Spiers [2008] NSWCCA 107

R v Todd [1982] NSWLR 517

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Wakefield v R [2010] NSWCCA 12

Wu v R [2011] NSWCCA 102; 211 A Crim R 88

Category:Principal judgment
Parties: Desmond Richards (Applicant)
Rex (Respondent)
Representation:

Counsel:
P F Tehan KC / P Skinner (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Law Partners Australia Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2019/139771; 2019/168986
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
 Decision under appeal 

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AGLC
Richards v R [2023] NSWCCA 107
Case
[2023] NSWCCA 107
Decision Date

CaseChat Overview and Summary

The appellant, Richards, appealed against his sentence for historical sex offences. The case was heard in the High Court of Australia. Richards argued that the sentencing judge did not adequately consider the delay between the commission of the offences and the sentence, the principle of totality, and the weight given to his post-offence good character. He further contended that the sentencing judge erred by not backdating the commencement of his sentence and that the total term of imprisonment and parole period were excessive.

The legal issues before the court were whether the sentencing judge adequately considered the delay, the principle of totality, and the weight of the post-offence good character evidence. The court had to determine if the sentencing judge erred in not backdating the commencement of the sentence and whether the total term of imprisonment and parole period constituted a manifest excess. The court also needed to assess the distinction between the absence of further convictions and the cessation of offending behaviour.

The High Court found that the sentencing judge did not adequately consider the delay and the principle of totality. The court held that the sentence imposed constituted a manifest excess of the maximum penalty. It was determined that the sentencing judge erred in not backdating the commencement of the sentence and in undervaluing the post-offence good character evidence. The court also clarified the distinction between the absence of further convictions and the cessation of offending behaviour, holding that these were separate considerations in sentencing.

The High Court quashed the sentence and remitted the matter to the sentencing court for re-sentencing. The court emphasised the importance of considering the delay, the principle of totality, and the weight of post-offence good character evidence in historical sex offence cases. It also underscored the necessity of accurately backdating the commencement of the sentence and ensuring that the total term of imprisonment and parole period is not excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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