CMB v. Attorney General for New South Wales

Lower Court Judgment

19/03/2014 Supreme Court of New South Wales (Court of Criminal Appeal) (Ward JA, Harrison J, R A Hulme J)

[2014] NSWCCA 5

Catchwords

Criminal law – Sentencing – Appeal against sentence – Criminal Appeal Act 1912 (NSW) (“CAA”), s 5D – Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), s 23 – Appellant sexually assaulted daughter and charged – Director of Public Prosecutions (DPP) successfully applied to have charges remitted to Local Court for referral to pre-trial diversion program – During program appellant revealed other offences committed against daughter – Appellant charged with further counts of aggravated sexual and indecent assault – At hearing appellant pleaded guilty to four counts of aggravated sexual assault and one count of aggravated indecent assault – Appellant sentenced to good behaviour bonds with requirement that appellant complete program – Attorney-General for New South Wales filed notice of appeal pursuant to s 5D of CAA – Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months’ imprisonment – Whether Court of Criminal Appeal erred in not exercising its residual discretion to decline to interfere under s 5D of CAA - Whether Court of Criminal Appeal erred in holding that the onus lay upon appellant contrary to authority and limited purpose of Crown appeals – Whether Court of Criminal Appeal erred in its application of both s 23 of CSPA and principle in R v Ellis in determining what leniency should be afforded to appellant.

Short Particulars