JA v R [2021] NSWCCA 10

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JA v R [2021] NSWCCA 10 Hearing dates: 4 December 2020 Date of orders: 15 February 2021 Decision date: 15 February 2021 Before: Basten JA at [1]; Johnson J at [2]; Davies J at [3] Decision: (1) Extend time for the filing of the Notice of Application for Leave to Appeal to 17 August 2020; (2) Grant leave to appeal. (3) Allow the appeal. (4) Quash the sentence for the offence contrary to s 66A of the Crimes Act 1900 (NSW) imposed by Judge Wilson SC in the District Court on 1 February 2019. (5) In lieu, sentence the appellant to a non-parole period of one year and three months commencing 25 November 2019 and expiring 24 February 2021 with a balance of term of five months expiring 24 July 2021. (6) The appellant is first eligible for parole on 24 February 2021. Catchwords: CRIME – appeals – appeal against sentence – applicant charged with three separate offences – one child sex offence contrary to s 66A – child sex offence committed when applicant was aged 14 and victim aged 9 – applicant sentenced when aged 44 – offences of using a carriage service to menace/harass/offend and possession of child abuse material committed when applicant aged 39 - whether sentencing judge erred by having regard to current maximum penalty for offence – relevance of judge's comments during sentence hearing - whether s 25AA of the Sentencing Act relevant where maximum penalty increased since the date of the offence - where sentencing judge was aware of the maximum penalty and his obligation to have regard to that penalty – whether sentencing judge failed to have proper regard to principles concerning sentencing juveniles – whether sentence manifestly excessive - appeal allowed – applicant resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 6 Crimes Act 1900 (NSW) ss 66A, 91H Crimes (Sentencing Procedure) Act 1999 (NSW) s25AA Criminal Code 1995 (Cth) s 474.17(1) Cases Cited: BM v R [2019] NSWCCA 223 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Dang v R [2014] NSWCCA 47 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Lonsdale v R [2020] NSWCCA 267 Mohindra v R [2020] NSWCCA 340 Paul Campbell v R [2018] NSWCCA 87 R v AJP (2004) 150 A Crim R 575 R v Elliott and Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305 R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 R v JA [2019] NSWDC 314 R v JDB [205] NSWCCA 102 R v KBM [2004] NSWCCA 123 R v KLH [2004] NSWCCA 312; (2004) 148 A Crim R 515 R v RM [2015] NSWCCA 4; (2015) 248 A Crim R 408 Texts Cited: Nil Category: Principal judgment Parties: JA (Applicant) Crown (Respondent) Representation: Counsel: P Johnson (Applicant) C Young (Respondent)