Darke v The The Queen - [2022] NSWCCA 52

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:
Baden v R [2020] NSWCCA 23
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
Young (a pseudonym) v R [2021] NSWCCA 163

Category: Principal judgment
Parties: Jayson David Darke (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
S Flood (Respondent)
Solicitors:
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:

[2021] NSWDC 377

Date of Decision:

11 December 2020

Before:

Adams QC ADCJ

File Number(s):

2018/42703

Judgment

JOHNSON J: I agree with Lonergan J.
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).
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…

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 Darke v The The Queen

Details

AGLC: Darke v The The Queen [2022] NSWCCA 52
Case: [2022] NSWCCA 52
Decision Date: 16 March 2022

CaseChat Overview and Summary

The appellant, Darke, appealed against the sentence imposed by the trial judge. The matter was heard in the High Court of Australia. The primary issue before the Court was whether the sentence imposed was appropriate, particularly in light of an error conceded by the Crown regarding the failure to refer to and apply section 16A(2AAA) of the Crimes Act 1914 (Cth). This section pertains to the consideration of aggravating and mitigating factors when determining the appropriate sentence for an offence.

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