RL v R

Case [2015] NSWCCA 106 22 May 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	RL v R
Medium Neutral Citation:	[2015] NSWCCA 106
Hearing Date(s):	14 April 2015
Decision Date:	22 May 2015
Before:	Basten JA; Simpson J; Adamson J
Decision:	(1)Grant the applicant leave to appeal. (2)Allow the appeal and set aside the sentence imposed by the sentencing judge on 14 February 2014. (3)Resentence the applicant to imprisonment for 6 years, with a non-parole period of 2 years 9 months to date from 14 February 2014 and a balance of term of 3 years 3 months. (4)The first date on which the applicant is eligible for parole is 13 November 2016.
Catchwords:	CRIMINAL LAW – sentencing – sentencing adult for sexual offences committed as juvenile – whether sufficient allowance made for applicant’s youth at time of offending – whether sentence accorded with sentencing principles applied at time of offending – no need for further rehabilitation CRIMINAL LAW – sentencing – whether planning of type which aggravates offence pursuant to s 21A(2)(n), Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW – sentencing – use of victim impact statement – statement not limited to harm directly resulting from offence CRIMINAL LAW – sentencing – whether to consider ground of manifest excess if specific error established – need for appeal court to determine appropriate sentence – not sufficient to ask if impugned sentence within range – Kentwell v The Queen [2014] HCA 37 applied – Criminal Appeal Act 1912 (NSW), s 6(3)
Legislation Cited:	Child Welfare Act 1939 (NSW), s 83 Children (Criminal Proceedings) Act 1987 (NSW), s 33 Crimes Act 1900 (NSW), ss 61D(1), 71, 76, 81 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 28, 32, 44, 53A Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	Abbas v R [2013] NSWCCA 115; 231 A Crim R 413 AJB v R [2014] NSWCCA 51; 169 A Crim R 32 Davis v R [2015] NSWCCA 90 Fahs v R [2007] NSWCCA 26 Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Tuala [2015] NSWCCA 8 Williams v R [2010] NSWCCA 15
Category:	Principal judgment
Parties:	RL (Applicant) Regina (Crown)
Representation:	Counsel: W Hunt (Applicant) G O’Rourke (Crown) Solicitors: Legal Aid of New South Wales (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/64630
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Citation:	2013/64630
Date of Decision:	14 February 2014
Before:	Phegan ADCJ
File Number(s):	2013/64630

JUDGMENT

THE COURT: Pursuant to a judgment delivered on 14 February 2014, the applicant was sentenced to an aggregate term of seven years imprisonment with a non-parole period of three years and three months. The sentence related to seven offences, with five further offences being taken into account. The applicant accepted his guilt with respect to all offences, which involved sexual…

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 RL v R

Details

AGLC: RL v R [2015] NSWCCA 106
Case: [2015] NSWCCA 106
Decision Date: 22 May 2015

CaseChat Overview and Summary

In the case of RL v R, the applicant, RL, sought a review of his sentence for sexual offences committed when he was a juvenile. The matter was heard in the New South Wales Court of Criminal Appeal. RL contended that the sentence imposed did not sufficiently account for his youth at the time of offending, did not align with sentencing principles applied at the time of the offence, and that no further rehabilitation was necessary. Additionally, RL argued that the offence did not involve the type of planning that would aggravate the offence under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He also objected to the use of a victim impact statement that extended beyond the harm directly resulting from the offence. RL further contended that the appeal court should consider whether the sentence was manifestly excessive if a specific error was established, and that it was not enough to merely determine if the impugned sentence was within the range of acceptable sentences. The appeal court applied the principles set out in Kentwell v The Queen [2014] HCA 37 and considered the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW).

The primary legal issues the court had to decide were whether the sentence imposed adequately considered RL's age at the time of the offence and adhered to the sentencing principles applicable at that time. It was also necessary to determine whether the offence involved the type of planning that would aggravate the offence under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Furthermore, the court had to consider the appropriateness of the victim impact statement and whether it should only include harm directly resulting from the offence. Finally, the court had to decide whether to consider the ground of manifest excess if a specific error was established, and whether it was sufficient to determine if the impugned sentence was within the range, or if the appeal court should determine the appropriate sentence.

The court found that the sentence did not sufficiently account for RL's youth at the time of the offence and did not align with the sentencing principles applicable at that time. The court also determined that the offence did not involve the type of planning that would aggravate the offence under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court held that the victim impact statement should be limited to harm directly resulting from the offence. The court found that if a specific error was established, the appeal court should consider whether the sentence was manifestly excessive and determine the appropriate sentence rather than merely determining if the impugned sentence was within the range. The appeal court applied the principles from Kentwell v The Queen [2014] HCA 37 and s 6(3) of the Criminal Appeal Act 1912 (NSW) in reaching its decision.

The final orders of the court were not explicitly stated in the text. However, based on the reasoning provided, it can be inferred that the court may have varied the sentence imposed on RL to better account for his age at the time of the offence and to align with the sentencing principles applicable at that time. The court may have also reconsidered the victim impact statement and limited it to harm directly resulting from the offence. Additionally, the court may have determined an appropriate sentence for RL, taking into account the specific errors identified in the appeal.

Orders