SB v R

Case [2022] NSWCCA 164


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: SB v R [2022] NSWCCA 164
Hearing dates: 27 June 2022
Date of orders: 8 August 2022
Decision date: 08 August 2022
Before: 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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Byrne v R; Cahill v R [2021] NSWCCA 185

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

Faehringer v R [2017] NSWCCA 248

Gibbons (a pseudonym) v R [2019] NSWCCA 150

GW v R [2018] NSWCCA 79

Hughes v R [2018] NSWCCA 2

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Dent (Court of Criminal Appeal (NSW)), 14 March 1991, unrep)

R v Lau [2022] NSWCCA 131

R v LS; R v MH [2020] NSWCCA 148

Tindall v R [2019] NSWCCA 136

TM v R [2018] NSWCCA 88

TO v R [2017] NSWCCA 12

Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Yaman v R [2020] NSWCCA 239

Category:Principal judgment
Parties: SB (Applicant)
Regina (Respondent)
Representation:

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

  1. BEECH-JONES CJ at CL: I agree with Wilson J.

  2. GARLING J: I agree with the orders proposed by Wilson J, and with Her Honour’s thorough and comprehensive reasons.

  3. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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