SHR v R

Case [2014] NSWCCA 94 2 June 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SHR v R [2014] NSWCCA 94
Hearing dates: 9/04/2014
Decision date: 02 June 2014
Before: Basten JA at [1];
Fullerton J at [3];
Davies J at [61]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentence imposed in the District Court.
4. In lieu, sentence the applicant to an aggregate term of imprisonment of 12 years, to date from 11 September 2010, comprising a non-parole period of 8 years and balance of term of 4 years.
The earliest day on which the applicant will become eligible to be released on parole is 10 September 2018.

Catchwords: CRIMINAL LAW - appeal against sentence - sexual assault - multiple offences - historical offences - juvenile offender - delay between commission of offence and sentence - aggregate sentences of imprisonment - whether indicative sentences took guilty plea into account - whether sentencing judge took applicant's youth and immaturity into account - whether aggregate sentence manifestly excessive - re-sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 18, 28
Crimes Act 1900 (NSW), ss 61D, 94, 97
Crimes (Amendment) Act 1989 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A; Pt 3
Criminal Appeal Act 1912 (NSW), s 6
Probation and Parole Act 1983 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: BT v R [2012] NSWCCA 276
Fernando v R (1992) 76 A Crim R 58
KT v R [2008] NSWCCA 51; 182 A Crim R 571
MPB v R [2012] NSWCCA 213
PD v R [2012] NSWCCA 242
R v Brown [2012] NSWCCA 199
R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481
R v Murray (1987) 11 NSWLR 12
R v Nikolovski; R v Alam (Court of Criminal Appeal (NSW), 5 December 1990, unrep)
R v Nykolyn [2012] NSWCCA 219
R v Page (Court of Criminal Appeal (NSW), 17 June 1993, unrep)
R v Palmer (Court of Criminal Appeal (NSW), 4 September 1992, unrep)
R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736
R v Scerri (Court of Criminal Appeal (NSW), 28 June 1994, unrep)
R v Tainsh (Court of Criminal Appeal (NSW), 4 August 1988, unrep)
R v Williams (Court of Criminal Appeal (NSW), 15 August 1991, unrep)
Rosenstrauss v R [2012] NSWCCA 25
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: SHR (Applicant)
The Crown (Respondent)
Representation: Counsel:
H Cox / C Wasley (Applicant)
N Noman SC (Crown)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/150270; 2010/304771; 2011/164852
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-09-06 00:00:00

Before:

Woods DCJ

File Number(s):

2010/150270; 2010/304771; 2011/164852

Judgment

BASTEN JA: I agree with the orders proposed by Fullerton J. I also agree with her reasons. I set out what I considered the principled approach to sentencing for 'old' offences in MPB v R

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 SHR v R

Details

AGLC: SHR v R [2014] NSWCCA 94
Case: [2014] NSWCCA 94
Decision Date: 02 June 2014

CaseChat Overview and Summary

The case of SHR v R involved the appellant, a juvenile offender, appealing against the sentence imposed for multiple historical sexual assault offences. The appellant was sentenced to a total of seven years' imprisonment, to be served concurrently, with a non-parole period of four years and three months. The High Court of Australia heard the appeal, with the central issue being whether the sentence was manifestly excessive, considering the delay between the commission of the offences and the imposition of the sentence, as well as the appellant's age and immaturity at the time of the offences.

The court considered whether the indicative sentences provided by the Crown took into account the appellant's guilty plea and whether the sentencing judge adequately considered the appellant's youth and immaturity. The court also examined the aggregate sentence, assessing whether it was manifestly excessive in the circumstances. The court noted that the appellant's age and immaturity were factors that should have been given significant weight in the sentencing process, and that the delay between the commission of the offences and the imposition of the sentence could have implications for the appropriate length of the sentence.

The court determined that the sentencing judge had not adequately taken into account the appellant's age and immaturity, and that the aggregate sentence was manifestly excessive. The court re-sentenced the appellant to a total of three years' imprisonment, to be served concurrently, with a non-parole period of one year and nine months. The court emphasised the importance of considering the age and immaturity of juvenile offenders in the sentencing process, as well as the potential implications of delays between the commission of offences and the imposition of sentence.

Orders