A.J.B. v Regina [2007] NSWCCA 51

A.J.B. v Regina [2007] NSWCCA 51

Although the sentencing judge was entitled to impose full-time custody and did not err by declining to impose a non-custodial sentence, by failing to refer to the psychiatric report, or by declining to take remissions into account, the overall sentence was manifestly excessive. The case was unusual because, after the offending was brought to light in 1982, the applicant sought treatment, did not reoffend, and had substantially reformed over a very lengthy period. Special circumstances were also properly found because the 1982 practice for fixing non-parole periods was more liberal than the current statutory regime in s 44 of the Crimes (Sentencing Procedure) Act 1999. A shorter overall...

Jurisdiction
Australia
Judgment Date
05 March 2007
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Application for leave to appeal granted and appeal allowed; District Court sentences quashed and new sentences imposed.
Legal Topics
['child Sexual Assault Offences' 'indecent Assault' 'historical Offending' 'manifest Excess' 'non Parole Period' 'special Circumstances' 'remissions' 'delay and Rehabilitation']
['criminal Law' 'sentencing'] ['child Sexual Assault Offences' 'indecent Assault' 'historical Offending' 'manifest Excess' 'non Parole Period' 'special Circumstances' 'remissions' 'delay and Rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether full-time custody was required for child indecent assault offences committed about 26 years before sentence, having regard to sentencing practices in 1982.' "Whether the sentencing judge gave insufficient weight to the applicant's subjective case, lack of further offending and rehabilitation." 'Whether the sentencing judge erred by not referring to, or giving insufficient regard to, the report of Dr Westmore.' 'Whether the overall sentence was manifestly excessive.' 'Whether remissions available in 1982 should be taken into account when sentencing for historical offences.' 'Whether special circumstances should be found to reduce the non-parole period because the practice for fixing non-parole periods in 1982 was more favourable than the current statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

Although the sentencing judge was entitled to impose full-time custody and did not err by declining to impose a non-custodial sentence, by failing to refer to the psychiatric report, or by declining to take remissions into account, the overall sentence was manifestly excessive. The case was unusual because, after the offending was brought to light in 1982, the applicant sought treatment, did not reoffend, and had substantially reformed over a very lengthy period. Special circumstances were also properly found because the 1982 practice for fixing non-parole periods was more liberal than the current statutory regime in s 44 of the Crimes (Sentencing Procedure) Act 1999. A shorter overall...

Court Disposition

Application for leave to appeal granted and appeal allowed; District Court sentences quashed and new sentences imposed.

Orders

  • ['Application for leave to appeal is granted and the appeal is allowed.' 'The sentences imposed in the District Court are quashed.' 'In respect of Counts 2 to 5 a sentence of imprisonment for 18 months to date from 9 March 2006 with a non-parole period of 9 months to expire on 8 December 2006.' 'In respect of Count...