Arvinthan v R [2022] NSWCCA 44

Arvinthan v R [2022] NSWCCA 44

The sentencing judge erred by treating the aggravated break and enter offence as aggravated under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because the person under 18 was the victim of the offence, not a child present as a witness. The victim's age could be considered as part of the objective seriousness of the offending, but could not also operate as the statutory aggravating factor without double-counting. The error required resentencing, and a lesser aggregate sentence was warranted after assessing objective seriousness, the serious indictable offences involved, deterrence, remorse, custodial conduct, youth, hardship and rehabilitation prospects.

Jurisdiction
Australia
Judgment Date
02 March 2022
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed by the District Court at Parramatta on 25 February 2021; Application for Leave and Appeal Heard Concurrently
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence quashed and applicant resentenced to a lesser aggregate sentence.
Legal Topics
['aggravating Factors' 'presence of a Child Under 18' 'objective Seriousness' 'break and Enter' 'serious Indictable Offence' 'sexual Touching' 'resentencing' 'aggregate Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravating Factors' 'presence of a Child Under 18' 'objective Seriousness' 'break and Enter' 'serious Indictable Offence' 'sexual Touching' 'resentencing' 'aggregate Sentence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed by the District Court at Parramatta on 25 February 2021; Application for Leave and Appeal Heard Concurrently

Legal Issues

  1. 1 ['Whether the sentencing judge erred by finding that the aggravated break and enter offence was more serious because it was committed in the presence of a child under 18 years of age under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the sentencing judge failed to take into account the relative seriousness of the serious indictable offences that were elements of the offences charged, including their maximum penalties.' 'Whether a lesser sentence was warranted on resentencing.']

Ratio Decidendi

The sentencing judge erred by treating the aggravated break and enter offence as aggravated under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because the person under 18 was the victim of the offence, not a child present as a witness. The victim's age could be considered as part of the objective seriousness of the offending, but could not also operate as the statutory aggravating factor without double-counting. The error required resentencing, and a lesser aggregate sentence was warranted after assessing objective seriousness, the serious indictable offences involved, deterrence, remorse, custodial conduct, youth, hardship and rehabilitation prospects.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence quashed and applicant resentenced to a lesser aggregate sentence.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The aggregate sentence imposed upon the applicant, Keerthy Arvinthan, by the District Court at Parramatta on 25 February 2021 is quashed and in lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 10 months, commencing 1 March 2020 and...