McClellan CJ at CL at [1] Johnson J at [2] Bellew J at [3]
Decision:
In each case:
1.extend the time in which to file a notice of intention to seek leave to appeal;
2.grant leave to appeal;
3.dismiss the appeal.
Catchwords:
CRIMINAL LAW - appeal - applicant sentenced for offences of child sexual assault - whether sentencing judge properly applied principles of totality - whether sentencing judge erred in failing to regard earlier offences for which the applicant had served a sentence of imprisonment as forming part of the same course of conduct - whether sentencing judge erred in refusing to find special circumstances - whether sentence manifestly excessive having regard to sentencing practice at the time of the offending - whether court should intervene in circumstances where error established
CRIMINAL LAW - appeal - applicant sentenced for offence of possessing child pornography - error of sentencing judge arising from mistake as to maximum penalty - error of sentencing judge in not fixing a non-parole period - whether court should intervene in circumstances where error established - whether sentence manifestly excessive
CRIMINAL LAW - appeal - application for extension of time in which to file notice of intention to seek leave to appeal - where notice filed substantially out of time - where limited evidence explaining the reasons for delay in filing the notice - principles to be applied in determining whether an extension of time should be granted
[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
RLS v R [2012] NSWCCA 236
Case
[2012] NSWCCA 236
Decision Date
CaseChat Overview and Summary
The applicant, RLS, appealed against his sentence for various offences, including child sexual assault and possession of child pornography. The sentencing judge had imposed a lengthy sentence, which RLS argued was manifestly excessive. The legal issues in the appeal centred on whether the sentencing judge properly applied the principle of totality in assessing the sentence, whether the earlier offences for which RLS had served a sentence should have been considered as part of the same course of conduct, whether the judge erred in refusing to find special circumstances, and whether the error in the maximum penalty for the child pornography offence warranted intervention. Additionally, RLS sought an extension to file a notice of intention to appeal, as the notice was filed out of time.
The court found that the sentencing judge had not adequately considered the principle of totality, particularly in relation to the earlier offences which should have been factored into the sentence. The court noted that the sentencing judge had failed to regard the earlier offences as part of the same course of conduct, which resulted in an overly punitive sentence. Furthermore, the court identified an error in the maximum penalty for the possession of child pornography offence, as the judge had incorrectly assumed a higher penalty than was available. Despite these errors, the court determined that the sentence was not manifestly excessive when considering the gravity of the offences and the sentencing practices at the time. However, the court acknowledged that the errors warranted intervention, particularly given the significant impact they had on the overall sentence.
In light of the identified errors, the court granted the application for an extension of time to file the notice of intention to appeal. The court considered the limited evidence provided regarding the delay in filing the notice, and concluded that an extension was warranted in the circumstances. The court emphasised that while the delay was substantial, the reasons provided, albeit limited, were sufficient to justify an extension.
The court ordered that the application for an extension of time be granted, and the sentence be subject to review on the grounds of the errors identified. The court did not alter the sentence at this stage but indicated that further review would be necessary to ensure the sentence accurately reflected the errors made by the sentencing judge.