MAN CONVICTED OF ASSAULTING MINORS SEEKS FOR A REVIEW OF SENTENCE RELYING ON A MATERIAL ALREADY PRESENT DURING APPEAL
AB v Attorney General for New South Wales [2021] NSWSC 575 (24 May 2021)
In this case, the Applicant applies for a review of the sentence, by reason of what are said to be misapprehensions or mistakes in the understanding of the Court of Criminal Appeal (hereinafter the “CCA”) when it determined the Applicant’s appeal.
Facts:
The applicant pleaded guilty to 5 offenses which mainly constituted the crime of assault against children. The sentencing judge imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.
The applicant appeals his sentence relying upon the fact that the evidence obtained by telephone intercepts contains statements to the effect that the Applicant self-reported to Anglicare and the Department of Child Protection and that self-reporting was not taken into account either by the sentencing judge or by the CCA.
The material upon which he sought to rely was not “new evidence”, but was evidence that supported or corroborated existing evidence. There are circumstances where evidence other than fresh evidence or new evidence will be admitted on appeal.
Issue: Should the sentence be modified?
Law:
Analysis:
The telephone intercepts merely evidence an assertion by the Applicant that such self-reporting occurred. In the absence of evidence directly attesting to that self-reporting, an assertion to a victim that self-reporting occurred, during the course of an apology and/or explanation, would not be taken as evidence of the fact represented.
Further, the evidence of self-reporting to Anglicare and the Department of Child Protection is significantly different from the allegation that the Applicant stayed silent, in relation to the charges against him and the conduct in question, insofar as it affected his remorse and the trauma suffered by the victim. Further again, the “self-reporting” to Anglicare and the Department were noted by the sentencing judge.
This application seeks to deal with matters that were fully considered in the appeal. Further, it does not appear to the Court that there is any question or doubt as to any mitigating circumstance or evidence.
In the circumstances, pursuant to the provisions of s 79(3), the Court refuses to consider or otherwise deal with the application.
Conclusion: The application is hereby dismissed.
