CRIMINAL LAW – sentence appeal – child sexual assault offences – child abuse material offences – seven counts under s.66A(2) Crimes Act 1900 – victim of s.66A(2) offences was Applicant’s 8-9 year old daughter – two counts under s.91G(1)(a) Crimes Act 1900 involving Applicant filming sexual offences committed against his daughter – one count of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 – aggregate sentence of imprisonment for 26 years and non-parole period of 18 years – claim of failure to give adequate reasons for aggregate sentence – error not demonstrated - claim of error in application of totality principle – whether totality principle involved two limbs addressing objective and subjective considerations – totality principle considered - two-limb approach rejected - no error in application of totality principle - claim that sentence manifestly excessive – aggregate sentence open to sentencing Judge - manifest excess not established - appeal dismissed
[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.
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AGLC
ZA v R [2017] NSWCCA 132
Case
[2017] NSWCCA 132
Decision Date
CaseChat Overview and Summary
The Applicant, ZA, appealed against his conviction and sentence for a series of offences related to the sexual assault of his daughter and the production and possession of child abuse material. The case was heard in the High Court of Australia. The charges included seven counts under section 66A(2) of the Crimes Act 1900, two counts under section 91G(1)(a) involving the filming of the sexual offences, and one count of possession of child abuse material under section 91H(2). The sentence imposed by the primary judge was imprisonment for 26 years, with a non-parole period of 18 years.
The primary issues for the court were whether the primary judge failed to provide adequate reasons for the aggregate sentence, whether there was an error in the application of the totality principle, and whether the sentence was manifestly excessive. The Applicant argued that the sentence was excessively long given the nature of the crimes and the need for general deterrence. The court considered whether the totality principle had been correctly applied, examining if it involved both objective and subjective considerations. The two-limb approach to the totality principle was rejected by the court. It was determined that the sentence was within the range of appropriate sentences for the crimes committed, and the manifest excess criterion was not met.
The court held that the sentence was within the broad range of appropriate sentences for the offences, and there was no error in the application of the totality principle. The appeal was dismissed, affirming the sentence imposed by the primary judge. The court found that the sentence was not manifestly excessive and did not demonstrate any error in the primary judge's reasoning. The aggregate sentence of 26 years with a non-parole period of 18 years was upheld, reflecting the gravity of the crimes and the need for general deterrence.