AM v R [2020] NSWCCA 101

AM v R [2020] NSWCCA 101

The sentencing judge found special circumstances on substantial grounds but imposed an aggregate non-parole period that was just under 73% of the head sentence, reducing the statutory proportion by only about 9 weeks, and did not explain why such a modest reduction was appropriate. Given the strength of the applicant's case for special circumstances, that failure meant the sentencing discretion miscarried. On resentencing, a lesser aggregate sentence with a non-parole period of about 60% of the head sentence was warranted, allowing discounts for the pleas of guilty and, for the s 66C(1) offences, disclosure of penetration.

Jurisdiction
Australia
Judgment Date
21 May 2020
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Determination of Extension of Time, Leave to Appeal, Appeal and Resentencing
Outcome
Time extended, leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant resentenced to a lesser aggregate sentence.
Legal Topics
['sexual Offences Against a Child' 'aggregate Sentence' 'special Circumstances' 'non Parole Period' 'leave to Appeal Against Sentence' 'resentencing']
['criminal Law' 'sentencing'] ['sexual Offences Against a Child' 'aggregate Sentence' 'special Circumstances' 'non Parole Period' 'leave to Appeal Against Sentence' 'resentencing']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Determination of Extension of Time, Leave to Appeal, Appeal and Resentencing

Legal Issues

  1. 1 ['Whether time should be extended for filing the application for leave to appeal against sentence.' 'Whether the sentencing judge failed sufficiently to vary the statutory ratio to give effect to the finding of special circumstances.' 'Whether the sentencing discretion miscarried so as to require resentencing.' 'What aggregate sentence and non-parole period should be imposed on resentencing.']

Ratio Decidendi

The sentencing judge found special circumstances on substantial grounds but imposed an aggregate non-parole period that was just under 73% of the head sentence, reducing the statutory proportion by only about 9 weeks, and did not explain why such a modest reduction was appropriate. Given the strength of the applicant's case for special circumstances, that failure meant the sentencing discretion miscarried. On resentencing, a lesser aggregate sentence with a non-parole period of about 60% of the head sentence was warranted, allowing discounts for the pleas of guilty and, for the s 66C(1) offences, disclosure of penetration.

Court Disposition

Time extended, leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant resentenced to a lesser aggregate sentence.

Orders

  • ['Extend the time for filing this application to 11 December 2019.' 'Leave to appeal granted.' 'Appeal allowed.' 'Sentence in the District Court quashed.' 'Applicant resentenced to an aggregate sentence of 6 years and 6 months, commencing on 6 October 2017 and expiring on 5 April 2024, with a non-parole period of 4...