AA v Regina [2009] NSWCCA 109

New South Wales Court of Criminal Appeal

CITATION: AA v Regina [2009] NSWCCA 109

HEARING DATE(S): 10 February 2009

JUDGMENT DATE: 15 April 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Sentence appeal - several offences committed in the course of abduction - relationship of offences - avoidance of double punishment - need for precision.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 s15 Crimes (Sentencing Procedure) Act 1999 s 54A(2)

CATEGORY: Principal judgment

Brooks v R [2006] NSWCCA 169 CM v Regina [2008] NSWCCA 195 CASES CITED : Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 R v AEM & Ors [2002] NSWCCA 58 R v Jones [2003] NSWCCA 54

PARTIES: AA (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/00014578006

COUNSEL: J A Girdham (Crown) C Smith (Applicant)

SOLICITORS: S Kavanagh (Crown) S E O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3210

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 27 March 2008

IN THE COURT OF CRIMINAL APPEAL 2007/00014578

McCLELLAN CJ at CL JAMES J ADAMS J

15 April 2009 AA v Regina Judgment

1 McCLELLAN CJ at CL: In this matter I have had the benefit of reading the judgment of Adams J in draft. Like his Honour I can discern no error in the sentencing judge's remarks. Although the effective sentence was significant the offences involving sexual penetration justified the finding as to their level of seriousness made by the sentencing judge. The overall sentence was not beyond the appropriate range. 2 I agree with the orders proposed by Adams J. 3 JAMES J: I agree with Adams J. 4 ADAMS J: AA was convicted on 7 December 2007 of four offences arising out of his abduction of a young woman, AB, at Bonnyrigg on 14 May 2006. At the time AA was a few months short of his seventeenth birthday and his victim was thirty-two years of age. The four offences were – (i) two offences of aggravated sexual intercourse without consent, the circumstance of aggravation being the use of a knife to threaten infliction of actual bodily harm (counts 1 and 2), each carrying a maximum penalty of twenty years' imprisonment and a standard non-parole period of ten years (s 61J(1) of the Crimes Act 1900); (ii) armed carjacking (count 3) carrying a maximum penalty of fourteen years' imprisonment and a standard non-parole period of five years (s 154C(2) of the Crimes Act 1900); (iii) detaining the victim with intent to obtain an advantage (count 4) carrying a maximum penalty of fourteen years' imprisonment (s 86(1)(b); and (iv) larceny (on a Form 1 schedule) of a pension card and $75 from the victim's wallet. 5 The sentences imposed were as follows – count 3 – four years and six months' imprisonment commencing 6 March 2007 with a non-parole period of two years expiring on 5 March 2009; count 4 – five years and six months' imprisonment commencing on 6 September 2007 with a non-parole period of three years and six months expiring on 5 March 2011; count 1 – eight years' imprisonment commencing on 6 March 2009 with a non-parole period of five years expiring on 5 March 2012; and count 2 – Taking into account the Form 1 matter, ten years' imprisonment commencing on 6 March 2010 with a non-parole period of six years expiring on 5 March 2016. 6 The sentences were ordered to be served by the applicant as a juvenile until he reached the age of twenty-one years. The effective sentence was one of thirteen years with a non-parole period of nine years. 7 The applicant seeks leave to appeal from the severity of these sentences. Although, at first, it was sought to argue that the sentencing judge's taking into account of prior serious offences committed by the applicant was an error having regard to the terms of s 15 of the Children (Criminal Proceedings) Act 1987, at the hearing of the appeal the Court was informed by Mr Smith of counsel for the applicant that this ground was no longer pressed. It is therefore unnecessary to say anything about it. 8 The applicant submitted, however, that although there was no error in respect of the particular sentence imposed for each offence, the effect of the accumulation was to produce an overall sentence that was manifestly excessive.