Aloniu v R [2017] NSWCCA 74

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aloniu v R [2017] NSWCCA 74 Hearing dates: 22 March 2017 Date of orders: 20 April 2017 Decision date: 20 April 2017 Before: Hoeben CJ at CL [1] Walton J at [2] Price J at [85] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – three counts of aggravated sexual intercourse without consent – whether procedural fairness denied – requirement of notice for a factor in aggravation –dealing with the applicant's knowledge of the complainant being underage as an aggravating factor – failure to give notice to the applicant – whether error in finding applicant held knowledge of the offence – circumstantial evidence supported inference to support finding of knowledge to criminal standard – resentencing discretion – lesser sentence not warranted – application of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal is granted – the appeal is dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Currie v R [2013] NSWCCA 267 Franklin v R [2016] NSWCCA 319 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 MRW v R [2011] NSWCCA 260 R v Stokes (2008) 185 A Crim R 74; [2008] NSWCCA 123 R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 Category: Principal judgment Parties: Malie Aloniu (Applicant) Regina (Respondent) Representation: Counsel: I Nash (Applicant) S Dowling (Respondent)