R v ABS [2005] NSWCCA 255

R v ABS [2005] NSWCCA 255

The s 11 order was inappropriate because the respondent's repeated serious sexual offending against his young stepdaughter involved objective criminality requiring significant full-time custodial sentences, and the sentencing judge erred by suggesting that a non-full-time custodial outcome might be available and by treating rehabilitation as effectively decisive rather than as one factor among the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Jurisdiction
Australia
Judgment Date
20 July 2005
Procedural Posture
Crown Appeal Against an Order Adjourning Sentencing Proceedings Pursuant to S 11(1) of the Crimes (sentencing Procedure) Act 1999 / Appeal in the New South Wales Court of Criminal Appeal
Outcome
Appeal allowed.
Legal Topics
['crown Appeal' 'section 11 Order' 'griffiths Remand' 'aggravated Sexual Intercourse Without Consent' 'child Sexual Assault' 'full Time Custody' 'rehabilitation' 'general Deterrence']
['criminal Law' 'sentencing'] ['crown Appeal' 'section 11 Order' 'griffiths Remand' 'aggravated Sexual Intercourse Without Consent' 'child Sexual Assault' 'full Time Custody' 'rehabilitation' 'general Deterrence']

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Procedural Posture

Crown Appeal Against an Order Adjourning Sentencing Proceedings Pursuant to S 11(1) of the Crimes (sentencing Procedure) Act 1999 / Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by adjourning the respondent's sentencing proceedings under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 to allow participation in a treatment program." 'Whether, given the objective seriousness of the offences, a sentence other than significant full-time custody could properly be contemplated.' "Whether delay in finalising sentencing was justified to further assess the respondent's rehabilitation."]

Ratio Decidendi

The s 11 order was inappropriate because the respondent's repeated serious sexual offending against his young stepdaughter involved objective criminality requiring significant full-time custodial sentences, and the sentencing judge erred by suggesting that a non-full-time custodial outcome might be available and by treating rehabilitation as effectively decisive rather than as one factor among the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Court Disposition

Appeal allowed.

Orders

  • ['The order imposed in the District Court is quashed.' 'The matter is remitted to the District Court to be relisted before the sentencing judge in order that the sentencing proceedings can be resolved as soon as is practicably possible.' 'Bail should be revoked.' 'The respondent is to be taken into custody.']