Young (a pseudonym) v R [2021] NSWCCA 163

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Young (a pseudonym) v R [2021] NSWCCA 163 Hearing dates: 5 May 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Before: Basten JA at [1]; Brereton JA at [2]; Beech-Jones J at [36] Decision: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) Set aside the aggregate sentence imposed by his Honour Judge Colefax SC on the applicant on 12 June 2020; (4) In lieu thereof: (a) impose an aggregate sentence of 18 years imprisonment to commence on 14 January 2018 and expire on 13 January 2036; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 13 years six months; (c) specify that the earliest date the applicant will be eligible to be released on parole is 13 July 2031; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are those specified in the schedule hereto. (5) Direct the applicant's solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offences the subject of this application. Catchwords: SENTENCING – aggregate sentence – two sets of serious sexual offences committed against two victims a decade apart – applicant self harmed after offending discovered in relation to first set of offences and rendered himself a paraplegic – sentencing judge wrongly took into account standard non-parole period when none specified – error conceded SENTENCING – error by sentencing judge – effect of error – discussion of principles in Kentwell v The Queen – application of principles – independent re-exercise of sentencing discretion – ongoing relevance of R v Simpson – by majority, applicant resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 53A, 54A, 54B; Div 1A, Pt 3 Crimes Act 1900 (NSW), ss 61O, 66A, 66C, 66J, 66M, 66EB, 91G, 91H, 578A Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), cl 2, Sch 2 Criminal Appeal Act 1912 (NSW), s 6 Cases Cited: Baxter v the Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 CR v R [2020] NSWCCA 289 House v R (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Maxwell v R [2020] NSWCCA 94 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Quinn v R [2018] NSWCCA 297 R v Quinn (No 3) [2016] NSWSC 169 R v Young (a pseudonym) [2020] NSWDC 303 RO v R [2019] NSWCCA 183 Sigalla v R [2021] NSWCCA 2 Turnbull v R [2019] NSWCCA 97 Category: Principal judgment Parties: Young (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant) G Newton (Crown)