ET v R [2024] NSWCCA 131

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ET v R [2024] NSWCCA 131 Hearing dates: 8 July 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Before: Mitchelmore JA at [1] Kirk JA at [2] Davies J at [3] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against aggregate sentence – four counts involving two complainants of assaulting a female and committing an act of indecency on a person under the age of 16 years – whether sentencing judge gave consideration to reducing the applicant's moral culpability due to his age at the time of offence – where applicant did not make submissions on his age and immaturity – sentencing judge still reduced the applicant's moral culpability – no error shown - whether sentencing judge had failed to find remorse – where no submission made by applicant to sentencing judge regarding remorse - where applicant had previously apologised to one complainant – no other statement or indication of remorse - apology did not show that applicant had accepted responsibility for his action – no error shown CRIME – appeals – appeal against sentence – manifest excess – whether indicative sentences were excessive resulting in manifestly excessive aggregate sentence - where the offences constituted serious offending against two young and defenceless victims – where a generous reduction of the non-parole period was granted – indicative sentences and the aggregate sentence were open to the sentencing judge – sentence not manifestly excessive EVIDENCE – new evidence – evidence sought to be led on appeal which was not before sentencing judge – where applicant submitted a miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence – new evidence related to a conviction recorded against the applicant in 1975 – where applicant submitted that the new evidence demonstrated his mental health issues relating to offences against second complainant – new evidence did not add anything of substance to evidence before sentencing judge – new evidence did not make any link or material contribution to the applicant's offending – where sentencing judge had reduced the applicant's moral culpability on account of his mental health – no miscarriage of justice - evidence rejected Legislation Cited: Crimes Act 1900 (NSW) s 76 (repealed) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 21B Cases Cited: Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Brzozowski v R [2023] NSWCCA 129 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cameron v R (2002) 209 CLR 339; [2002] HCA 6 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Edmonds v R [2022] NSWCCA 103 Ghamraoui v R [2009] NSWCCA 111 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Birks (1990) 19 NSWLR 677 R v Obbens [2022] NSWCCA 109 Richards v R [2023] NSWCCA 264 Vassiliou v R [2022] NSWCCA 91 Whipp v R [2024] NSWCCA 79 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Texts Cited: Nil Category: Principal judgment Parties: ET (Applicant) The King (Respondent) Representation: Counsel: S Kluss (Applicant) V Garrity (Respondent)