R v XX [2017] NSWCCA 90

R v XX [2017] NSWCCA 90

The prior assistance XX gave in relation to the conspiracy to murder was capable of falling within s 23(1), but the sentencing judge erred by treating a discount as available without considering whether the wholly unrelated nature of the earlier assistance justified refusing any lesser penalty. Given the assistance was provided six to seven years before the present child sexual offences, bore no relationship to them, had already attracted a $17,000 payment, and there was no evidence of harsher custodial conditions or ongoing risk, a proper exercise of the discretion required refusal of a s 23 discount. The sentencing judge also erred in not finding breach of trust for the first offence,...

Jurisdiction
Australia
Judgment Date
10 May 2017
Procedural Posture
Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentence
Outcome
Appeal allowed; District Court aggregate sentence set aside; respondent resentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years.
Legal Topics
['crown Appeal' 'child Sexual Offences' 'aggregate Sentence' 'assistance to Law Enforcement Authorities' 'crimes (sentencing Procedure) Act 1999 S 23' 'objective Seriousness' 'breach of Trust' 'manifest Inadequacy' 'residual Discretion']
['criminal Law' 'sentencing'] ['crown Appeal' 'child Sexual Offences' 'aggregate Sentence' 'assistance to Law Enforcement Authorities' 'crimes (sentencing Procedure) Act 1999 S 23' 'objective Seriousness' 'breach of Trust' 'manifest Inadequacy' 'residual Discretion']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by allowing a discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 for assistance provided years earlier in relation to an unrelated conspiracy to murder.' 'Whether the sentencing judge erred in assessing the objective seriousness of the first sexual intercourse offence as slightly below the midrange of objective seriousness.' 'Whether the sentencing judge erred by not finding that the first offence was aggravated by abuse of a position of trust.' 'Whether the aggregate sentence and non-parole period were manifestly inadequate.' 'Whether the residual discretion not to intervene in a Crown appeal should be exercised.']

Ratio Decidendi

The prior assistance XX gave in relation to the conspiracy to murder was capable of falling within s 23(1), but the sentencing judge erred by treating a discount as available without considering whether the wholly unrelated nature of the earlier assistance justified refusing any lesser penalty. Given the assistance was provided six to seven years before the present child sexual offences, bore no relationship to them, had already attracted a $17,000 payment, and there was no evidence of harsher custodial conditions or ongoing risk, a proper exercise of the discretion required refusal of a s 23 discount. The sentencing judge also erred in not finding breach of trust for the first offence,...

Court Disposition

Appeal allowed; District Court aggregate sentence set aside; respondent resentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years.

Orders

  • ['Appeal allowed.' 'Set aside the aggregate sentence imposed by the District Court on 28 October 2016 and amended on 29 November 2016.' 'Impose an aggregate sentence of 9 years imprisonment to commence on 24 July 2015 and expire on 23 July 2024.' 'Pursuant to s 44(2A) of the Sentencing Act set a non-parole period of...