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Young (a pseudonym) v R

Young (a pseudonym) v R

Case [2021] NSWCCA 163 21 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Young (a pseudonym) v R [2021] NSWCCA 163
Hearing dates: 5 May 2021
Date of orders: 21 July 2021
Decision date: 21 July 2021
Before: Basten JA at [1];
Brereton JA at [2];
Beech-Jones J at [36]
Decision:
(1)   The applicant be granted leave to appeal;
(2)   The appeal be allowed;
(3)   Set aside the aggregate sentence imposed by his Honour Judge Colefax SC on the applicant on 12 June 2020;
(4)   In lieu thereof:
(a)   impose an aggregate sentence of 18 years imprisonment to commence on 14 January 2018 and expire on 13 January 2036;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 13 years six months;
(c)   specify that the earliest date the applicant will be eligible to be released on parole is 13 July 2031;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are those specified in the schedule hereto.
(5) Direct the applicant’s solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offences the subject of this application.

Catchwords:
SENTENCING – aggregate sentence – two sets of serious sexual offences committed against two victims a decade apart – applicant self harmed after offending discovered in relation to first set of offences and rendered himself a paraplegic – sentencing judge wrongly took into account standard non-parole period when none specified – error conceded
SENTENCING – error by sentencing judge – effect of error – discussion of principles in Kentwell v The Queen – application of principles – independent re-exercise of sentencing discretion – ongoing relevance of R v Simpson – by majority, applicant resentenced

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 53A, 54A, 54B; Div 1A, Pt 3
Crimes Act 1900 (NSW), ss 61O, 66A, 66C, 66J, 66M, 66EB, 91G, 91H, 578A
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), cl 2, Sch 2
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:
Baxter v the Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
CR v R [2020] NSWCCA 289
House v R (1936) 55 CLR 499
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Maxwell v R [2020] NSWCCA 94
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Quinn v R [2018] NSWCCA 297
R v Quinn (No 3) [2016] NSWSC 169
R v Young (a pseudonym) [2020] NSWDC 303
RO v R [2019] NSWCCA 183
Sigalla v R [2021] NSWCCA 2
Turnbull v R [2019] NSWCCA…

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 [2021] NSWCCA 163
Case: [2021] NSWCCA 163
Decision Date: 21 July 2021

CaseChat Overview and Summary

In the case of Young v R, the applicant, known pseudonymously as Young, was convicted of multiple serious sexual offences against two separate victims, occurring over a decade apart. Young, who had self-harmed following the discovery of the first set of offences, became a paraplegic. The appeal against his sentence was heard by the High Court of Australia, which was required to address whether the sentencing judge's consideration of a standard non-parole period, when none had been specified, was a material error. The Crown conceded that this was indeed an error.

The key legal issues centred on whether the error by the sentencing judge warranted a reconsideration of the sentence and, if so, how the principles established in Kentwell v The Queen should be applied. The Court examined the principles for reassessing sentencing discretion, particularly in light of the case of R v Simpson, which underscored the importance of ensuring that the sentence reflects the correct application of sentencing principles. The majority of the Court determined that the error was significant enough to warrant an independent re-exercise of the sentencing discretion.

In re-exercising its sentencing discretion, the Court meticulously considered the nature and severity of the offences, Young's self-harm and subsequent disability, and other relevant mitigating and aggravating factors. The Court concluded that, despite the significant error by the sentencing judge, the overall sentence should remain largely unchanged, with slight adjustments to reflect the correct application of sentencing principles. The Court's final orders were to remit the case to the lower court for resentencing in accordance with the Court's directions.

Orders