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Young (a Pseudonym) v R

Young (a Pseudonym) v R

Case [2022] NSWCCA 111 3 June 2022

Sentencing

Delay in Prosecution

Age at Time of Offence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Young (a pseudonym) v R [2022] NSWCCA 111
Hearing dates: 27 May 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Before: Bell CJ at [1];
Button J at [2];
N Adams J at [3].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The aggregate sentence imposed by Judge Haesler SC on 20 July 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 2 years’ of imprisonment to commence on 4 February 2021 and expire on 3 February 2023 with an aggregate non-parole period of 16 months to expire on 3 June 2022.

Catchwords:
SENTENCING – appeal against sentence – manifest excess – difficult sentencing exercise – sexual offences committed on child when offender was also a child – Bugmy background – delay of 16-17 years between offending and charges laid – offender lost opportunity both to be dealt with as a child and to be dealt with prior to amendments to sentencing regime in 2018 – threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 – objective seriousness of offending required custodial sentence – sentence did not reflect delay, age of applicant at time of offences and overwhelming subjective case – leave to appeal granted – appeal allowed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 4, 16, 17
Crimes Act1900 (NSW), ss 66C(1), 66D
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(1), 32, 44(2B), 53A, 67(1)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act2017 (NSW)

Cases Cited:
AB v R [2022] NSWCCA 3
BM v R [2019] NSWCCA 223
Brierley v R [2022] NSWCCA 26
Bugmy v The Queen (2103) 249 CLR 571; [2013] HCA 37
Conte v R [2018] NSWCCA 209
Griffin v R [2018] NSWCCA 259
JA v R [2021] NSWCC 10
Kliendienst v R [2020] NSWCCA 98
KT v R [2008] NSWCCA
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v Nelson [2016] NSWCCA 130
R v Young (a pseudonym) [2021] NSWDC 702
SW v R [2019] NSWCCA 194
Zreika v R [2012] NSWCCA 44

Texts Cited:
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard),
6 June 2018

Category: Principal judgment
Parties: Steven Young (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr K Averre (Applicant)
Ms E Nicholson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/222921
Publication restriction:
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of, or any matter which could identify, the applicant and the victim is prohibited.
Pursuant to s 578A of the Crimes Act 1900 (NSW) publication of any matter…

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 Young (a Pseudonym) v R

Details

AGLC: Young (a Pseudonym) v R [2022] NSWCCA 111
Case: [2022] NSWCCA 111
Decision Date: 03 June 2022

CaseChat Overview and Summary

In the case of Young (a Pseudonym) v R, the appellant appealed against his sentence following a conviction for sexual offences committed against a child when the appellant was also a child. The appeal was heard in the Court of Criminal Appeal of New South Wales. The central issue before the court was whether the sentence imposed was manifestly excessive, taking into account the delay in prosecution, the age of the appellant at the time of the offences, and the subjective circumstances of the case. The appellant argued that the sentence did not adequately reflect these factors, and that it was disproportionate.

The court considered the principles outlined in Bugmy, which emphasise the importance of proportionality and individualised sentencing. It acknowledged the significant delay of 16-17 years between the offending and the laying of charges, which resulted in the appellant losing the opportunity to be dealt with under the juvenile justice system and prior to the amendments to the sentencing regime in 2018. The court noted that the threshold for a custodial sentence, as established in section 5 of the Crimes (Sentencing Procedure) Act 1999, requires consideration of both the objective seriousness of the offending and the subjective circumstances of the offender. The court concluded that the sentence did not appropriately account for the delay, the appellant's age at the time of the offences, and the compelling subjective case presented.

Given these considerations, the Court of Criminal Appeal granted leave to appeal and allowed the appeal. The sentence imposed was deemed manifestly excessive, and the case was remitted to the sentencing court for re-sentencing. This decision underscores the importance of a comprehensive and balanced approach to sentencing in cases involving historical sexual offences, particularly where the offender was a child at the time of the offending.

Orders