AC v R [2023] NSWCCA 133

AC v R [2023] NSWCCA 133

The standard non-parole period for historical offences under s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 is that which applied at the time of the offence (5 years), not the higher period introduced with retrospective effect; s 25AA(2) of the CSPA is clear and prevails over transitional provisions. The sentencing judge erred in applying the higher non-parole period, and also erred in holding the Applicant had not expressed remorse where there was some evidence to the contrary.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Criminal Appeal / Court of Criminal Appeal After Sentence in the District Court
Outcome
Appeal allowed; sentence quashed; Applicant resentenced
Legal Topics
['sentencing Procedures' 'standard Non Parole Period' 'statutory Interpretation' 'principles of Precedent' 'sexual Offences Against Children']
['criminal Law' 'sentencing'] ['sentencing Procedures' 'standard Non Parole Period' 'statutory Interpretation' 'principles of Precedent' 'sexual Offences Against Children']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal After Sentence in the District Court

Legal Issues

  1. 1 ['Whether the standard non-parole period to be applied to historical offences under s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 is 5 or 8 years' 'Whether Gett v Tabet principles concerning departure from precedent apply to conclusions about statutory construction in GL v R [2022] NSWCCA 202' 'Whether the sentencing judge erred in finding that the Applicant had not expressed remorse']

Ratio Decidendi

The standard non-parole period for historical offences under s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 is that which applied at the time of the offence (5 years), not the higher period introduced with retrospective effect; s 25AA(2) of the CSPA is clear and prevails over transitional provisions. The sentencing judge erred in applying the higher non-parole period, and also erred in holding the Applicant had not expressed remorse where there was some evidence to the contrary.

Court Disposition

Appeal allowed; sentence quashed; Applicant resentenced

Orders

  • ['Grant leave to appeal' 'Allow the appeal' 'Quash the sentence imposed by Colefax SC DCJ on 27 November 2020' 'Resentence the Applicant to an aggregate sentence of 7 years of imprisonment, with a non-parole period of 5 years and 3 months, to date from 4 October 2019']