AJ v R [2023] NSWCCA 158

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AJ v R [2023] NSWCCA 158 Hearing dates: 5 April 2023 Decision date: 30 June 2023 Before: Simpson AJA at [1]; Button J at [2]; Hamill J at [68] Decision: (1) Leave to appeal against sentence granted. (2) Appeal against sentence upheld, and aggregate sentence previously imposed quashed. (3) The applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, to commence on 2 January 2019 and expire on 1 January 2033, with a non-parole period of 9 years, which will expire on 1 January 2028. (4) The first date upon which the applicant is eligible for possible release to parole is 1 January 2028. Catchwords: CRIME – appeal – appeal against sentence – multiple child sexual offences – where two child victims the natural children of the applicant – offending found to be at or below the mid-range of objective seriousness – whether starting points of indicative sentences too close to maximum penalty – whether aggregate sentence manifestly excessive – grounds of appeal directed at aggregate term on the basis that indicative terms were erroneously imposed not prohibited – starting points only two months short of the maximum penalty for two counts not appropriate given the applicant's objective and subjective case – error in imposition of indicatives sentences found to have influenced the aggregate term imposed – appeal allowed – sentence imposed at first instance set aside – resentence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: BT v R [2010] NSWCCA 267 Davidson v R [2022] NSWCCA 153 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ibbs v The Queen (1987) 163 CLR 447 JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kerr v R [2016] NSWCCA 218 PG v R [2017] NSWCCA 179 R v Rae [2013] NSWCCA 9 R v Thomson; R v Houlton (2000) NSWLR 383; [2000] NSWCCA 309 Sharma v R [2022] NSWCCA 190 Truong v R [2013] NSWCCA 36 Young v R [2021] NSWCCA 163 Category: Principal judgment Parties: AJ (Appellant) Rex (Respondent) Representation: Counsel: D Marr (Appellant) E Wilkins SC (Respondent)