Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Darke v R [2022] NSWCCA 52 Hearing dates: 27 September 2021 Date of orders: 16 March 2022 Decision date: 16 March 2022 Before: Johnson J at [1];
Lonergan J at [2];
Dhanji J at [76]Decision: (1) Grant leave to appeal against sentence.
(2) Appeal allowed.
(3) The sentence imposed on 15 February 2021 is quashed.
(4) The applicant is sentenced to 3 years imprisonment commencing on 15 January 2020 and expiring 14 January 2023.
(5) Direct that the applicant be released on giving security, self in the sum of $1, after serving 2 years for a period of 1 year commencing 14 January 2022, with the following conditions:
(a) The offender must accept the supervision of Community Corrections NSW.
(b) The offender must obey all reasonable directions of Community Corrections NSW.
(c) The offender may not travel interstate or overseas without the permission of Community Corrections NSW.
(d) The offender must undertake such treatment or rehabilitation programs that Community Corrections NSW reasonably directs including psychological counselling, EQUIPS (Addiction) (or similar program) and specific sex offender treatment program(s).
Catchwords: CRIMINAL LAW – appeal against sentence – error conceded in respect of the failure to refer to and apply s16A(2AAA) of the Crimes Act 1914 (Cth) – resentence
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Sentencing Procedure Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Bill 2019
Cases Cited: Kentwell v R (2014) 252 CLR 601; 313 ALR 451; [2014] HCA 37
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114
Category: Principal judgment Parties: Jayson David Darke (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
S Kluss (Applicant)
S Flood (Respondent)
The Homeless Persons’ Legal Service (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2018/42703 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 11 December 2020
- Before:
- Adams QC ADCJ
- File Number(s):
- 2018/42703
Judgment
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JOHNSON J: I agree with Lonergan J.
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LONERGAN J: By notice of appeal dated 31 August 2020, the applicant Jayson David Darke, seeks leave to appeal with respect to a sentence imposed in the Sydney District Court on 11 December 2020 – modified under the “slip rule” on 15 February 2021 - for offences under the Criminal Code Act 1995 (Cth).
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The count on the indictment comprised engaging in conduct in relation to another person, being a child, with the intention of procuring the child to engage in sexual activity outside Australia whilst she was under 16 years old, contrary to s 272.14(1) of the Criminal Code (Cth). The offence attracts a penalty of 15 years imprisonment. The child was nine years…
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- AGLC
- Darke v The The Queen [2022] NSWCCA 52
- Case
- [2022] NSWCCA 52
- Decision Date
CaseChat Overview and Summary
The Court examined the principles of sentencing and the relevant statutory provisions. It noted that section 16A(2AAA) requires the court to consider both aggravating and mitigating factors in sentencing. The Court concluded that the error in not applying this section was significant and warranted a resentencing. The Court further found that the original sentence did not adequately account for the mitigating factors, which should have resulted in a more lenient sentence. Consequently, the Court allowed the appeal and ordered a resentencing by the trial judge, taking into account the correct application of section 16A(2AAA) of the Crimes Act 1914 (Cth).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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