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
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
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
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.