JA v R [2021] NSWCCA 10

JA v R [2021] NSWCCA 10

The sentencing judge did not err by relying on the current maximum penalty, because the reasons showed awareness that the applicable maximum penalty for the s 66A offence was 20 years' imprisonment and s 25AA did not permit use of a later increased maximum penalty. However, the sentence for the s 66A offence was manifestly excessive because the judge failed to properly apply the principles concerning sentencing juveniles, including the applicant's age of 14, likely immaturity and impulse-control difficulties, and the reduced role of deterrence. Properly assessed, the offence fell within the low range of objective seriousness and required a substantially shorter sentence. The appeal was...

Jurisdiction
Australia
Judgment Date
15 February 2021
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced
Outcome
Extension of time granted; leave to appeal granted; appeal allowed; sentence for the s 66A offence quashed and substituted with a shorter sentence.
Legal Topics
['child Sexual Offence' 'sentencing Juveniles' 'maximum Penalty' 'manifest Excess' 'totality' 'extension of Time' 'use Carriage Service to Menace/harass/offend' 'possession of Child Abuse Material']
['criminal Law' 'sentencing' 'criminal Appeals'] ['child Sexual Offence' 'sentencing Juveniles' 'maximum Penalty' 'manifest Excess' 'totality' 'extension of Time' 'use Carriage Service to Menace/harass/offend' 'possession of Child Abuse Material']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by having regard to the current maximum penalty for the offence contrary to s 66A of the Crimes Act 1900 (NSW).' 'Whether the sentence imposed for the offence contrary to s 66A of the Crimes Act 1900 (NSW) was manifestly excessive.' 'Whether the degree of accumulation between the three individual sentences was excessive having regard to the principle of totality.' 'Whether an extension of time should be granted for the filing of the Notice of Application for Leave to Appeal.']

Ratio Decidendi

The sentencing judge did not err by relying on the current maximum penalty, because the reasons showed awareness that the applicable maximum penalty for the s 66A offence was 20 years' imprisonment and s 25AA did not permit use of a later increased maximum penalty. However, the sentence for the s 66A offence was manifestly excessive because the judge failed to properly apply the principles concerning sentencing juveniles, including the applicant's age of 14, likely immaturity and impulse-control difficulties, and the reduced role of deterrence. Properly assessed, the offence fell within the low range of objective seriousness and required a substantially shorter sentence. The appeal was...

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed; sentence for the s 66A offence quashed and substituted with a shorter sentence.

Orders

  • ['Extend time for the filing of the Notice of Application for Leave to Appeal to 17 August 2020.' 'Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence for the offence contrary to s 66A of the Crimes Act 1900 (NSW) imposed by Judge Wilson SC in the District Court on 1 February 2019.' 'In lieu, sentence...