Aubourg v R [2013] NSWCCA 154

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aubourg v R [2013] NSWCCA 154 Hearing dates: 25 June 2013 Decision date: 25 June 2013 Before: Basten JA at [1]; R A Hulme J at [29]; Garling J at [30] Decision: 1. Grant leave to appeal 2. Dismiss the appeal Catchwords: CRIMINAL LAW - appeal - sentencing - whether error of fact by sentencing judge materially affected sentence imposed - applicant charged with kidnapping offence in company of co-offenders - sentencing judge wrongly attributed threat to use knife to applicant - whether error material

CRIMINAL LAW - appeal - sentencing - whether appellate court should reduce sentence where sentencing judge made material error of fact - error did not relate to most serious aspect of offending - sentence not manifestly excessive for objective offending - applicant's culpability not significantly reduced by subjective circumstances - reduction would create disparity with less culpable co-offender - whether less severe sentence warranted in law - Criminal Appeal Act 1912 (NSW), s 6(3) Legislation Cited: Crimes Act 1900 (NSW), s 86(2)(a) Cases Cited: R v Speechley [2012] NSWCCA 130 Category: Principal judgment Parties: Jessica Lynette Aubourg (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: T Gartelmann (Applicant) T Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/150018 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-09-12 00:00:00 Before: Sides DCJ File Number(s): 2011/00150018