Naveed v R [2019] NSWCCA 149

Naveed v R [2019] NSWCCA 149

The sentencing judge did not treat unsworn evidence of remorse as legally incapable of satisfying s 21A(3)(i); read as a whole, her Honour considered the applicant's letter but was entitled to treat its late and untested assertions as insufficient to establish remorse on the balance of probabilities. The sentence of 9 years' imprisonment with a non-parole period of 6 years and 4 months was not plainly unreasonable or unjust, particularly given the unchallenged finding that objective seriousness was in the upper or top band of the middle range, the maximum penalty of 14 years, and the standard non-parole period of 7 years.

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Extension of Time, Leave to Appeal, and Sentence Appeal
Outcome
Extension of time granted; leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'remorse Under S 21 A(3)(i)' 'manifest Excess' 'comparable Cases' 'intoxicated Complainant']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Intercourse Without Consent' 'remorse Under S 21 A(3)(i)' 'manifest Excess' 'comparable Cases' 'intoxicated Complainant']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred in her interpretation of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in dealing with evidence of remorse.' 'Whether the sentencing judge erred in the manner in which she dealt with evidence of remorse.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not treat unsworn evidence of remorse as legally incapable of satisfying s 21A(3)(i); read as a whole, her Honour considered the applicant's letter but was entitled to treat its late and untested assertions as insufficient to establish remorse on the balance of probabilities. The sentence of 9 years' imprisonment with a non-parole period of 6 years and 4 months was not plainly unreasonable or unjust, particularly given the unchallenged finding that objective seriousness was in the upper or top band of the middle range, the maximum penalty of 14 years, and the standard non-parole period of 7 years.

Court Disposition

Extension of time granted; leave to appeal granted; appeal dismissed.

Orders

  • ['Extend time for leave to appeal to 15 January 2019.' 'Grant leave to appeal.' 'Dismiss the appeal.']