KB v R [2015] NSWCCA 220

KB v R [2015] NSWCCA 220

The appeal was allowed because the sentencing judge took into account RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88 as relevant comparable sentencing decisions, but both had since been set aside or reconsidered after the High Court's correction in Muldrock. This required the Court to re-exercise the sentencing discretion, making due allowance for the Appellant's guilty pleas, subjective circumstances, objective seriousness, special circumstances, and the need for partial accumulation between independent assaults.

Jurisdiction
Australia
Judgment Date
19 August 2015
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence; Appeal Determined
Outcome
Time extended, leave granted, appeal allowed, District Court sentences quashed and substituted sentences imposed.
Legal Topics
['appeal Against Sentence' 'comparable Sentence Decisions' 'standard Non Parole Periods' 'child Sexual Offences' 'indecent Assault on a Child Under 16 Years' 'sexual Intercourse With a Child Under 10 Years']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'comparable Sentence Decisions' 'standard Non Parole Periods' 'child Sexual Offences' 'indecent Assault on a Child Under 16 Years' 'sexual Intercourse With a Child Under 10 Years']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence; Appeal Determined

Legal Issues

  1. 1 ['Whether time should be extended and leave granted to appeal against sentence.' "Whether the sentencing judge's reliance on RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88, which were subsequently reconsidered after Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, occasioned a miscarriage of justice." 'Whether the sentences imposed in the District Court should be quashed and the sentencing discretion re-exercised.']

Ratio Decidendi

The appeal was allowed because the sentencing judge took into account RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88 as relevant comparable sentencing decisions, but both had since been set aside or reconsidered after the High Court's correction in Muldrock. This required the Court to re-exercise the sentencing discretion, making due allowance for the Appellant's guilty pleas, subjective circumstances, objective seriousness, special circumstances, and the need for partial accumulation between independent assaults.

Court Disposition

Time extended, leave granted, appeal allowed, District Court sentences quashed and substituted sentences imposed.

Orders

  • ['Extend time within which to apply for leave to appeal against sentence up to and including the date on which such application was filed.' 'Grant leave to appeal.' 'Allow the appeal.' 'The sentences imposed in the District Court on 27 September 2013 are quashed.' 'Count 2 – a non-parole period of 3 years commencing...