AJ v R [2023] NSWCCA 235

AJ v R [2023] NSWCCA 235

The appeal was upheld because the remarks on sentence did not reveal whether, and to what extent, the applicant's youth and immaturity were taken into account in assessing moral culpability or in moderating general deterrence. On re-sentence, the Court considered the seriousness of the offending, the applicant's rehabilitation prospects, remorse, low risk of reoffending, and the sentence imposed on co-offender TM. The head sentence remained appropriate, but parity required reducing the non-parole period to 12 months.

Jurisdiction
Australia
Judgment Date
06 October 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; sentence quashed; applicant re-sentenced with a reduced non-parole period.
Legal Topics
['sentencing of Children' 'aggravated Robbery Causing Grievous Bodily Harm' 'moral Culpability' 'general Deterrence' 'parity' 're Sentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sentencing of Children' 'aggravated Robbery Causing Grievous Bodily Harm' 'moral Culpability' 'general Deterrence' 'parity' 're Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in failing to assess the applicant's moral culpability, or failed to make clear that he had done so, having regard to the applicant's youth." "Whether the sentencing judge erred in failing to assess whether the applicant's young age meant that less weight should be given to general deterrence, or failed to make clear what finding was made on that issue." "Whether the difference between the applicant's sentence and the sentence imposed on co-offender TM gave rise to a justifiable sense of grievance warranting re-sentence."]

Ratio Decidendi

The appeal was upheld because the remarks on sentence did not reveal whether, and to what extent, the applicant's youth and immaturity were taken into account in assessing moral culpability or in moderating general deterrence. On re-sentence, the Court considered the seriousness of the offending, the applicant's rehabilitation prospects, remorse, low risk of reoffending, and the sentence imposed on co-offender TM. The head sentence remained appropriate, but parity required reducing the non-parole period to 12 months.

Court Disposition

Leave to appeal granted; appeal upheld; sentence quashed; applicant re-sentenced with a reduced non-parole period.

Orders

  • ['Grant leave to appeal.' 'Uphold the appeal.' 'Quash the sentence imposed in the District Court on 13 March 2023.' 'In lieu, sentence the applicant to a non-parole period of 12 months commencing 26 December 2022 and expiring 25 December 2023 with a balance of term of 2 years and 3 months expiring 25 March 2026.'...