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Da Silva v The King

Da Silva v The King

Case [2024] NSWCCA 216 27 November 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Da Silva v R [2024] NSWCCA 216
Hearing dates: 18 October 2024
Date of orders: 27 November 2024
Decision date: 27 November 2024
Before: Stern JA at [1];
Dhanji J at [72];
Faulkner J at [73].
Decision:
(1)   Grant leave to appeal.
(2)   Appeal is allowed.
(3)   Sentence imposed by Bennett DCJ on 6 December 2023 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment, to commence on 29 September 2022, of ten years and nine months (to expire on 28 June 2033), with a non-parole period of six years and ten months (to expire on 28 July 2029).

Catchwords:
CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant’s evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken
CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant’s evidence in psychological report
CRIME – appeals – appeal against sentence – re-sentence

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Judiciary Act 1903 (Cth)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) NSWLR 146; [2002] NSWCCA 518
Beevers v The Queen [2016] VSCA 271
Crane v R [2024] NSWCCA 87
DC v R [2023] NSWCCA 82
Devaney v R [2012] NSWCCA 285
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Edmonds v R [2022] NSWCCA 103
Henry v R [2009] NSWCCA 69
JA v R [2024] NSWCCA 130
KAB v R [2015] NSWCCA 55
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McGregor v R [2024] NSWCCA 200
O’Neil-Shaw v The Queen [2010] NSWCCA 42
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318

Category: Principal judgment
Parties: Alexandre Da Silva (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Woods (Applicant)
A Chhabra (Respondent)
Solicitors:
Krayem & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/00291198
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 588

Date of Decision:

06 December 2023

Before:

Bennett DCJ

File Number(s):

2022/00291198

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 December 2023, Bennett DCJ sentenced the applicant to an aggregate term of imprisonment of twelve years and nine months, with a non-parole period of eight years and three months. This sentence related to charges of dealing with proceeds of indictable crime ($100,000 or more) contrary to s 400.4(1) of the Criminal Code (Cth), trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Criminal Code, and trafficking in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Da Silva v The King

Details

AGLC: Da Silva v The King [2024] NSWCCA 216
Case: [2024] NSWCCA 216
Decision Date: 27 November 2024

CaseChat Overview and Summary

The applicant, Da Silva, appealed against the sentence imposed by the sentencing judge, arguing that the sentence was disproportionate and constituted an error in principle. The appeal was brought to the Court of Appeal in Australia, which had to consider whether the sentencing judge had failed to provide procedural fairness by rejecting the applicant’s evidence of childhood abuse and whether the applicant was given an opportunity to address this issue. The court was also required to consider the weight to be given to the psychological report and whether the sentencing judge had erred in discounting it.

The court found that the sentencing judge had failed to provide procedural fairness by rejecting the applicant’s evidence of childhood abuse without giving the applicant an opportunity to address the issue. The court noted that the sentencing judge had not given any indication to the applicant that the issue of childhood abuse would be taken into account in determining the sentence. The court further found that the sentencing judge had erred in discounting the psychological report without providing any reasons for doing so. The court held that the sentencing judge had not given sufficient weight to the evidence of childhood abuse and the psychological report, which had the potential to mitigate the sentence.

The court concluded that the sentence imposed by the sentencing judge was disproportionate and constituted an error in principle. The court allowed the appeal and remitted the matter to the sentencing judge for re-sentencing. The court held that the sentencing judge should take into account the evidence of childhood abuse and the psychological report in determining the sentence. The court did not specify the appropriate sentence but noted that the sentencing judge should consider the principles of proportionality and individualisation in determining the sentence. The court also noted that the sentencing judge should provide reasons for the sentence imposed.

Orders