AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 21 October 2016

AGF v R

[2016] NSWCCA 236

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CHILD SEXUAL ASSAULT SIGNIFICANT DELAY NEW EVIDENCE OF ASSISTANCE RECEIVED APPLICANT RE

Citation: AGF v R [2016] NSWCCA 236
Court: Court of Criminal Appeal, New South Wales
Date: 21 October 2016
Judge(s): Meagher JA; Harrison J; R A Hulme J (judgment by R A Hulme J)

Background

The applicant, referred to by the pseudonym AGF to protect his identity, was convicted by a jury in early 2009 of 10 sexual offences against his niece committed between 1997 and 2003, when she was aged 12 to 18. The District Court sentenced him in November 2009 to a total effective sentence of 15 years' imprisonment with a non-parole period of 10 years.

Two significant matters were not before the sentencing judge. First, the applicant had provided information to police about serious criminal activity before his trial, but this assistance was never disclosed to his legal representatives during the sentencing proceedings. Second, at the time of sentencing, the applicant had a prior conviction for child sexual assault, which the sentencing judge took into account. That prior conviction was subsequently quashed on appeal.

The applicant filed a notice of appeal against sentence in June 2016, approximately seven years after sentencing and four years after his conviction appeal had been determined. The substantial delay was a point of contention, though the Court ultimately extended time.

  • Whether a miscarriage of justice arose from the sentencing judge not being informed of the applicant's assistance to authorities.
  • Whether a miscarriage of justice arose from the sentencing judge proceeding on the basis that the applicant held a prior conviction for child sexual assault, which was later quashed.
  • Whether the significant delay in bringing the sentence appeal should preclude an extension of time.
  • Whether new evidence of the assistance, admitted on appeal, justified a reduction in sentence.

Decision

On Ground 2, the Court found that the quashed prior conviction had no actual impact on the sentence imposed in the District Court, and this ground therefore provided no basis for intervention. The sentencing judge's treatment of the prior conviction did not materially affect the outcome.

On Ground 1, the Court admitted the evidence of assistance as "new evidence" (evidence that existed at the time of sentencing but was not before the court) rather than "fresh evidence." Despite the applicant's explanation for the delay, including genuine fears of reprisal from a person he had informed on who had links to serious and violent crime, the Court acknowledged that aspects of the history were, as senior counsel conceded, "unacceptable." Nonetheless, the Court found the assistance sufficiently substantial to warrant intervention in order to remedy a miscarriage of justice.

The assistance comprised three elements. The most significant involved the applicant providing information about serious criminal activity by a person with a notorious history of violent crime, which, in combination with intelligence from another source, contributed to a successful investigation and prosecution resulting in imprisonment. The second and third elements, relating to organised crime activity and a prison inmate, were characterised as more general and of lesser significance. Taking all three into account, the Court was satisfied the assistance was reasonably significant, useful, truthful, reliable and timely, and that it exposed the applicant and potentially his family to a real risk of personal harm.

The Court accepted the common position of both parties that the otherwise applicable sentences imposed in the District Court were appropriate, and resentenced the applicant with a reduction to reflect his assistance. The total effective sentence was reduced from 15 years to 13 years 6 months, with the non-parole period reduced from 10 years to 9 years.

Orders Made

  • Time to file the Notice of Application for Leave to Appeal extended to 1 June 2016.
  • Leave to appeal granted and appeal allowed.
  • Sentences imposed in the District Court on 6 November 2009 quashed and the following sentences imposed:
  • Count 1: fixed term of 11 months commencing 16 June 2008.
  • Count 4: fixed term of 2 years 8 months commencing 16 May 2009.
  • Count 5: fixed term of 11 months commencing 16 May 2009.
  • Counts 6 and 7: fixed term of 2 years 8 months each commencing 16 April 2010.
  • Counts 8 and 9: fixed term of 2 years 8 months each commencing 16 March 2011.
  • Count 10: fixed term of 3 years 7 months commencing 16 March 2011.
  • Count 11: fixed term of 1 year 4 months commencing 16 February 2012.
  • Count 13 (including Form 1 offence): non-parole period of 4 years 6 months and balance of term of 4 years 6 months, commencing 16 December 2012, with non-parole period expiring 15 June 2017 and total term expiring 15 December 2021.
  • Confidential Exhibit A returned forthwith to the Crown.

Key Takeaways

  • A quashed prior conviction does not automatically establish a miscarriage of justice on sentence appeal. Where the conviction had no demonstrable impact on the sentence actually imposed, it provides no basis for appellate intervention.
  • New evidence of assistance to authorities (evidence that existed but was not placed before the sentencing judge) can support a sentence appeal, even where significant delay and unexplained aspects of the non-disclosure exist, provided the assistance is of sufficient substance to have warranted a reduction at first instance.
  • Under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court assessed the assistance by reference to its usefulness, truthfulness, reliability, timeliness, and the risk of harm the applicant faced as a result of providing it.
  • Considerable delay in filing a sentence appeal weighs against an extension of time, but the Court of Criminal Appeal may nonetheless grant the extension where failure to do so would allow a miscarriage of justice to stand.
  • Where an applicant's protective classification in custody makes their incarceration significantly more arduous than for other prisoners, this remains a relevant subjective consideration at sentencing, capable of supporting a finding of special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61J, 61M(1), 61O(1), 66C(2), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
- Criminal Code (Cth), s 474.19

Cases:
- Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Many v R (1990) 51 A Crim R 54
- R v Cartwright (1989) 17 NSWLR 243