Cabezuela v R [2020] NSWCCA 107

Cabezuela v R [2020] NSWCCA 107

The trial judge was cognisant of the discretion to discharge a juror under s 53B(d) of the Jury Act 1977 (NSW); no jurisdictional error occurred. Indicative sentences and the aggregate sentence imposed were not manifestly excessive given the seriousness, duration, and aggravation of the offending. Fresh evidence regarding COVID-19 was not admissible as new material for the appeal but leave to appeal on that ground was granted and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
25 May 2020
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal dismissed; leave to appeal granted in respect of ground 3 only
Legal Topics
['jury Discharge Discretion' 'historic Child Sexual Offences' 'manifest Excess in Sentencing' 'fresh Evidence on Appeal' 'special Circumstances for Aggregate Sentence' 'covid 19 Impact on Custodial Arrangements']
['criminal Law'] ['jury Discharge Discretion' 'historic Child Sexual Offences' 'manifest Excess in Sentencing' 'fresh Evidence on Appeal' 'special Circumstances for Aggregate Sentence' 'covid 19 Impact on Custodial Arrangements']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether trial judge committed jurisdictional error in failing to discharge juror with legal training' 'Whether aggregate sentence imposed was manifestly excessive' 'Whether sentence was manifestly excessive having regard to COVID-19 pandemic, advanced age and health of the appellant']

Ratio Decidendi

The trial judge was cognisant of the discretion to discharge a juror under s 53B(d) of the Jury Act 1977 (NSW); no jurisdictional error occurred. Indicative sentences and the aggregate sentence imposed were not manifestly excessive given the seriousness, duration, and aggravation of the offending. Fresh evidence regarding COVID-19 was not admissible as new material for the appeal but leave to appeal on that ground was granted and the appeal dismissed.

Court Disposition

Appeal dismissed; leave to appeal granted in respect of ground 3 only

Orders

  • ['Grant leave to appeal with respect to ground 3 of the application for leave to appeal against sentence.' 'Dismiss the appeal.']