STB v R

Case [2024] NSWCCA 36 13 March 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: STB v R [2024] NSWCCA 36
Hearing dates: 18 October 2023
Date of orders: 13 March 2024
Decision date: 13 March 2024
Before: Price J at [1]
Lonergan J at [2]
Dhanji J at [75]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – offences of sexual intercourse with child – inclusion on form 1 of repealed offence – error conceded – no findings on remorse, prospects of rehabilitation or risks of reoffending – offender denying offences six weeks prior to sentencing hearing despite having pleaded guilty three months prior – questionable insight – no lesser sentence is warranted in law

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
AK v R [2016] NSWCCA 238
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baker v R [2022] NSWCCA 195
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Giles-Adams v R; Preca v R [2023] NSWCCA 122
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Li v R [2023] NSWCCA 112
Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92
Masters v R [2019] NSWCCA 233
Porter v R [2019] NSWCCA 117
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v M.A.K; R v M.S.K (2006) 167 A Crim R 159; [2006] NSWCCA 381
Regina v O [2005] NSWCCA 327
The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345; [1974] HCA 36
Zuffo v R [2017] NSWCCA 187

Category: Principal judgment
Parties: STB (Applicant)
Rex (Respondent)
Representation:
Counsel:
B Neild SC (Applicant)
T Abdulhak (Respondent)
Solicitors:
AA Criminal Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2020/164701
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) publication of the victim’s name or any other information that might identify her is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 July 2022

Before:

Traill DCJ

File Number(s):

2020/164701

JUDGMENT

PRICE J: I agree with Lonergan J.
LONERGAN J: The applicant seeks leave to appeal against the sentence imposed upon him following his pleas of guilty to three sexual offences against his stepsister over a three-year period between January 2018 and May 2020. At the time of offending the victim was nine to twelve years old and the applicant was twenty to twenty-two years old. Also taken into account were offences on form 1 certificates comprising four other incidents of sexual offending against that same victim in that same period of time.
The sentence imposed in the District Court Sydney by Traill SC DCJ on 15 July…

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 STB v R

Details

AGLC: STB v R [2024] NSWCCA 36
Case: [2024] NSWCCA 36
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the matter of STB v R, the respondent appealed against his conviction and sentence for sexual offences against a child. The appeal was heard in the Court of Appeal. The respondent pleaded guilty to two counts of sexual intercourse with a child under 16. The offences were committed in 2018 and 2019, and the victim was under the age of 12. The respondent's appeal was based on the sentence imposed by the sentencing judge.

The primary legal issue for the court was whether the sentence was excessive and whether there were any errors in the sentencing process that warranted a reduction in the sentence. The respondent's counsel argued that the sentencing judge had failed to consider the respondent's prospects of rehabilitation and the risks of reoffending. The respondent's counsel also submitted that the sentencing judge had failed to take into account the fact that the respondent had denied the offences just six weeks prior to the sentencing hearing, despite having pleaded guilty three months earlier. The prosecution argued that the sentence was appropriate and that there were no errors in the sentencing process.

The court found that the sentencing judge had failed to consider the respondent's prospects of rehabilitation and the risks of reoffending. However, the court noted that the respondent had not shown that a lesser sentence was warranted in law. The court also found that the respondent's denial of the offences six weeks prior to the sentencing hearing did not warrant a reduction in the sentence. The court noted that the respondent had pleaded guilty to the offences three months prior to the sentencing hearing and that there was no evidence to suggest that the respondent had any insight into the nature and seriousness of the offences. The court held that the appeal against sentence was not successful.

The court dismissed the appeal against sentence and upheld the sentence imposed by the sentencing judge. The respondent was sentenced to imprisonment for a period of eight years and six months, with a non-parole period of five years and nine months. The court noted that the sentence was appropriate given the seriousness of the offences and the need to protect the community.

Orders