Veljanoski v R [2021] NSWCCA 255

Veljanoski v R [2021] NSWCCA 255

The appeal was allowed because the sentencing judge imposed an indicative sentence for Count 5 equal to the maximum penalty despite assessing that offence as midrange and despite allowing a 25% early plea discount, and because the judge treated the 15-year-old victim's age-based vulnerability as an aggravating factor for the s 66DD(a) offence when that age was an element of the offence. On resentencing, the post-sentence neuropsychological report was not admitted because it was not fresh evidence, was not evidence of post-sentence rehabilitation, could have been obtained before sentence, and no exceptional circumstances or miscarriage of justice were shown. The appropriate aggregate...

Jurisdiction
Australia
Judgment Date
08 November 2021
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Resentencing
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; appellant resentenced.
Legal Topics
['sexual Act Without Consent' 'sexual Act Towards Child' 'intimidation Intending Fear of Harm' 'aggregate Sentence' 'indicative Sentences' 'early Plea Discount' 'victim Vulnerability as Aggravating Factor' 'fresh or New Evidence on Sentence Appeal' 'intellectual Disability and Moral Culpability']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Act Without Consent' 'sexual Act Towards Child' 'intimidation Intending Fear of Harm' 'aggregate Sentence' 'indicative Sentences' 'early Plea Discount' 'victim Vulnerability as Aggravating Factor' 'fresh or New Evidence on Sentence Appeal' 'intellectual Disability and Moral Culpability']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Resentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred in imposing an indicative sentence which was the maximum penalty for the offence in Count 5 despite assessing the offence as in the midrange and allowing a 25% discount for the early plea.' "Whether the sentencing judge erred by taking into account victim vulnerability as an aggravating factor for the s 66DD(a) offence where the victim's age was an element of the offence." 'Whether the applicant could rely on a further psychological report prepared after sentence for resentencing purposes.' 'What sentence should be imposed on resentencing after the conceded errors.']

Ratio Decidendi

The appeal was allowed because the sentencing judge imposed an indicative sentence for Count 5 equal to the maximum penalty despite assessing that offence as midrange and despite allowing a 25% early plea discount, and because the judge treated the 15-year-old victim's age-based vulnerability as an aggravating factor for the s 66DD(a) offence when that age was an element of the offence. On resentencing, the post-sentence neuropsychological report was not admitted because it was not fresh evidence, was not evidence of post-sentence rehabilitation, could have been obtained before sentence, and no exceptional circumstances or miscarriage of justice were shown. The appropriate aggregate...

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; appellant resentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence imposed by Judge Woods QC in the District Court on 4 August 2020.' 'In lieu, sentence the appellant to an aggregate sentence of two years and eight months imprisonment commencing 23 March 2020 and expiring 22 November 2022 with a non-parole period of...