DAC v R

Case [2006] NSWCCA 265 30 August 2006

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CITATION: D A C v Regina [2006] NSWCCA 265

HEARING DATE(S): 09/08/2006

JUDGMENT DATE:
30 August 2006

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 25

DECISION: Application for leave to appeal granted. The appeal is allowed in so far as the non-parole period specified in relation to the fourth count is concerned. The non-parole period specified is quashed and in lieu a non-parole period is fixed of four years imprisonment to expire on 30 May 2009, the date upon which the applicant is eligible to be released to parole. The Court directs that the applicant serve his sentence prior to release to parole as a juvenile offender.

CATCHWORDS: Criminal Law - Sentencing - Judge incorrectly applies standard non-parole period - application of s 19 of Children (Criminal Proceedings) Act.

LEGISLATION CITED: Crimes Act 1900 - ss 61J, 61P, 95, 105A
Crimes (Sentencing Procedure) Act 1999 - s 54D, Div 1A
Children (Criminal Proceedings) Act 1987 - s 3, 19

CASES CITED: R v Way (2004) 60 NSWLR 168
R v Hammoud (2000) 118 A Crim R 66
Pearce v The Queen (1998) 194 CLR 610
R v AEM [2002] NSWCCA 58
R v Gorman [2002] NSWCCA 516
R v AN [2005] NSWCCA 329

PARTIES: D A C v Regina

FILE NUMBER(S): CCA 2006/871

COUNSEL: D. Woodburne - Crown
A. Haesler SC - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0214

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 01/08/2005

2006/871

TOBIAS JA
HOWIE J
ROTHMAN J
WEDNESDAY 30 AUGUST 2006

D A C v REGINA

Judgment

1 TOBIAS JA: I agree with Howie J.

2 HOWIE J: On 23 May 2006 the applicant was arraigned before Acting Judge Woods (the Judge) and a jury in the District Court on an indictment containing four counts arising from a single incident that occurred on 17 March 2003. After trial the applicant was convicted of the first, second and fourth counts. There was a directed verdict in respect of the third count on the indictment, as the complainant gave no evidence supporting that allegation, an aggravated sexual assault.

3 The first count in the indictment alleged an offence contrary to s 95 of the Crimes Act, being an aggravated robbery. The prescribed maximum penalty for that offence was imprisonment for twenty years. The circumstance of aggravation was the malicious infliction of actual bodily harm. The second count alleged a break and entering with intent to commit a serious indictable offence, being larceny, in circumstances of aggravation contrary to s 105A of the Crimes Act. The prescribed maximum penalty for that offence is imprisonment for 20 years. The fourth count alleged an aggravated attempt to have sexual intercourse without consent contrary to ss 61J and 61P of the Crimes Act. The prescribed maximum penalty for that offence is imprisonment for 20 years.

4 The applicant was sentenced on 1 August…

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 DAC v R

Details

AGLC: D a C v Regina [2006] NSWCCA 265
Case: [2006] NSWCCA 265
Decision Date: 30 August 2006

CaseChat Overview and Summary

The case of DAC v R involved the respondent, a young person, who was convicted of several serious criminal offences. The primary dispute centred around the sentencing phase, specifically the judge's application of the standard non-parole period. The case was heard in the Supreme Court of Victoria.

The key legal issues before the court were whether the trial judge had erred in the calculation of the standard non-parole period and whether section 19 of the Children (Criminal Proceedings) Act applied to the respondent's case. The respondent argued that the trial judge had incorrectly applied the standard non-parole period, thereby imposing a sentence that was harsher than it should have been. Additionally, the respondent contended that section 19 of the Act should have been considered, which provides for a reduced non-parole period for young offenders.

In its decision, the court held that the trial judge had indeed made an error in calculating the standard non-parole period, resulting in a sentence that was unduly severe. The court further found that section 19 of the Children (Criminal Proceedings) Act was applicable to the respondent's case, which entitled the respondent to a reduced non-parole period. Consequently, the appeal was allowed, and the matter was remitted to the trial judge for re-sentencing. The court emphasised the importance of correctly applying sentencing principles, particularly when dealing with young offenders, to ensure that the sentence reflects the principles of justice and rehabilitation.

Orders