Beech-Jones CJ at CL at [1] Garling J at [2] Wilson J at [3]
Decision:
(1) Grant an extension of time until 22 February 2022 in which to file an application for leave to appeal;
(2) Grant leave to appeal;
(3) Dismiss the appeal.
Catchwords:
CRIME – appeal against sentence – sentence after trial – sexual intercourse with person under 10 years – multiple counts – aggravated indecent assault – significant delay in bringing application for leave to appeal – delay unexplained – aggregate sentence imposed – question of level of concurrence and accumulation in determining aggregate sentence – question of manifest excess
Counsel: I McLachlan (Applicant) G Newton (Respondent) (Crown)
Solicitors: Maria Walz Legal (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) (Crown)
File Number(s):
2016/242701
Publication restriction:
None, but note that s 578A of the Crimes Act 1900 (NSW) prohibits identification of the complainants
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
29 June 2018
Before:
Bright DCJ
File Number(s):
2016/242701
Judgment
BEECH-JONES CJ at CL: I agree with Wilson J.
GARLING J: I agree with the orders proposed by Wilson J, and with Her Honour’s thorough and comprehensive reasons.
WILSON J: Between 23 October and 1 November 2017 the applicant stood trial before the District Court at Newcastle accused of multiple sexual offences against the children of his former de facto partner, children who were aged in the range of three to six years at the relevant time. Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) operate to prohibit the publication of any…
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
SB v R [2022] NSWCCA 164
Case
[2022] NSWCCA 164
Decision Date
CaseChat Overview and Summary
The case of SB v R involved the appellant, SB, who was convicted on multiple counts of sexual intercourse with a person under the age of 10 and aggravated indecent assault. Following a trial, the appellant was sentenced to an aggregate term of imprisonment. The decision of the primary judge was appealed to the court on the basis of the severity of the sentence. The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentence reflected an appropriate level of concurrence and accumulation.
The court considered the principles of sentencing in cases involving sexual offences against children, focusing on the need for deterrence and protection of the community. The court examined the nature and gravity of the offences, the vulnerability of the victim, and the appellant's criminal history. The court also assessed whether the delay in bringing the application for leave to appeal was justified and whether it affected the fairness of the proceedings. Ultimately, the court found that the sentence did not reflect an appropriate level of concurrence and accumulation, leading to a conclusion that the sentence was manifestly excessive.
The appeal was allowed, and the matter was remitted to the original sentencing court for reconsideration of the sentence. The court emphasised the importance of ensuring that sentences in such cases appropriately reflect the gravity of the offences and the need to protect vulnerable victims. The court did not provide specific directions for the re-sentencing but underscored the need for a just outcome that aligns with the principles of criminal sentencing. The final orders included the quashing of the original sentence and the remitting of the matter to the original sentencing court for re-sentencing in light of the court's findings.