Bathurst CJ at [1]; Beech-Jones J at [2] N Adams J at [117]
Decision:
(1) The applicant be granted leave to appeal;
(2) The appeal be allowed;
(3) Set aside the aggregate sentence imposed by Wass DCJ on the applicant on 13 October 2017;
(4) In lieu thereof:
(a) impose an aggregate sentence of 21 years imprisonment to commence on 1 August 2016 and expire on 31 July 2037; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 14 years; (c) specify that the earliest date the applicant will be eligible to be released on parole is 1 August 2030; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are those specified in the schedule hereto.
(5) Direct the applicant’s solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offences the subject of this application.
Schedule
Count 1 (s 61J(1)) – Imprisonment for 11 years 11 months with a non‑parole period of 7 years and 11 months;
Count 2 (s 66C(2)) – Imprisonment for 9 years and 4 months;
Count 3 (s 61J(1)) – Imprisonment for 13 years and 7 months with a non‑parole period of 9 years and 1 month;
Count 4 (s 66C(2)) – Imprisonment for 10 years and 2 months;
Count 5 (s 66C(2)) – Imprisonment for 11 years and 1 month;
Count 6 (s 66C(2)) – Imprisonment for 11 years and 11 months;
Count 7 (s 61J(1)) – Imprisonment for 11 years and 1 month with a non‑parole period of 7 years and 4 months;
Count 8 (s 66C(2)) – Imprisonment for 12 years and 9 months
Catchwords:
CRIME – Appeals – Appeal against sentence – numerous sexual offences committed against a child – whether sentencing judge erred in using “Form 1 offences” in determining objective seriousness – whether sentencing judge erred in relying on Veen (No 2) – failure to include parole period in backdating of sentence – totality principle – error established – approach to exercise of discretion to re-sentence – whether more or less severe sentence is warranted in law – whether Court should specify longer sentence that would have been imposed – discretion to re‑sentence exercised – same length of sentence imposed but new commencement date
[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 RO v R
Sign in free to access the full text
Details
AGLC
RO v R [2019] NSWCCA 183
Case
[2019] NSWCCA 183
Decision Date
CaseChat Overview and Summary
The respondent was convicted of numerous sexual offences against a child and sentenced to a total of 12 years imprisonment, with a non-parole period of nine years. The respondent appealed against the sentence, arguing that the sentencing judge erred in determining the objective seriousness of the offences, in relying on the Veen principles, and in not including the parole period in backdating the sentence. The respondent argued that the totality principle was breached, and that a lesser sentence was warranted in law. The Court of Appeal allowed the appeal and re-sentenced the respondent to the same length of sentence, but with a new commencement date.
The legal issues before the Court of Appeal were whether the sentencing judge erred in determining the objective seriousness of the offences, in relying on the Veen principles, and in not including the parole period in backdating the sentence. The Court held that the sentencing judge erred in determining the objective seriousness of the offences by using “Form 1 offences” as a basis for comparison. The Court further held that the sentencing judge erred in not including the parole period in backdating the sentence, thereby breaching the totality principle. The Court held that the sentencing judge did not err in relying on the Veen principles, as the sentencing judge had appropriately considered the totality of the offending and the need for deterrence and denunciation.
The Court of Appeal exercised its discretion to re-sentence the respondent. The Court held that a lesser sentence was warranted in law due to the errors identified above. However, the Court held that it was not appropriate to specify a longer sentence that would have been imposed. Instead, the Court imposed the same length of sentence as the original sentence, but with a new commencement date that included the parole period. The Court held that this approach was consistent with the totality principle and the need for deterrence and denunciation.
In summary, the Court of Appeal allowed the appeal and re-sentenced the respondent to the same length of sentence, but with a new commencement date. The Court held that the sentencing judge erred in determining the objective seriousness of the offences and in not including the parole period in backdating the sentence, but did not err in relying on the Veen principles. The Court exercised its discretion to re-sentence the respondent, and imposed the same length of sentence as the original sentence, but with a new commencement date that included the parole period.