Care v R [2022] NSWCCA 101

Care v R [2022] NSWCCA 101

The sentencing judge's assessment of the applicant's deprived background was affected by a mistake of fact because the judge treated the applicant's childhood environment of screaming and physical abuse as confined to the period before age four and one incident at age 12, ignoring unchallenged and uncontroverted evidence of further abuse by the mother's partners. The judge also failed to take account of the mandatory mitigating consideration of remorse under s 21A(3)(i), because the applicant had provided unchallenged evidence accepting responsibility and acknowledging harm. Those errors required appellate intervention, and on resentencing a less severe aggregate sentence was warranted.

Jurisdiction
Australia
Judgment Date
20 May 2022
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Appeal Upheld and Applicant Resentenced
Outcome
Leave to appeal granted; appeal upheld; District Court sentence quashed; applicant resentenced to a lesser aggregate sentence.
Legal Topics
['drug Supply' 'proceeds of Crime' 'remorse' 'deprived Background' 'bugmy Principles' 'unchallenged Evidence' 'mistake of Fact' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['drug Supply' 'proceeds of Crime' 'remorse' 'deprived Background' 'bugmy Principles' 'unchallenged Evidence' 'mistake of Fact' 'resentencing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Appeal Upheld and Applicant Resentenced

Legal Issues

  1. 1 ["Whether the sentencing judge mistook the facts concerning the applicant's deprived and abusive childhood background." "Whether the sentencing judge erred by not accepting unchallenged and uncontroverted evidence from the applicant's mother, the applicant and his brother about abuse suffered by the applicant." 'Whether the sentencing judge erred in failing to take into account remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether, after error was established, a less severe sentence was warranted in law.']

Ratio Decidendi

The sentencing judge's assessment of the applicant's deprived background was affected by a mistake of fact because the judge treated the applicant's childhood environment of screaming and physical abuse as confined to the period before age four and one incident at age 12, ignoring unchallenged and uncontroverted evidence of further abuse by the mother's partners. The judge also failed to take account of the mandatory mitigating consideration of remorse under s 21A(3)(i), because the applicant had provided unchallenged evidence accepting responsibility and acknowledging harm. Those errors required appellate intervention, and on resentencing a less severe aggregate sentence was warranted.

Court Disposition

Leave to appeal granted; appeal upheld; District Court sentence quashed; applicant resentenced to a lesser aggregate sentence.

Orders

  • ['Grant leave to appeal.' 'Uphold the appeal.' 'Quash the sentence imposed on the applicant, Adrian Cosmo Care, in the District Court on 17 December 2020 and, in lieu thereof, sentence the applicant, Adrian Cosmo Care, to an aggregate sentence of a non-parole period of 3 years and 6 months commencing 22 June 2019...