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Darrigo v Regina

Darrigo v Regina

Case [2007] NSWCCA 9 5 February 2007

Sentencing

Aggravated & Exemplary Damages

Causation

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Darrigo v Regina [2007] NSWCCA 9

HEARING DATE(S): 15 December 2006

JUDGMENT DATE:
5 February 2007

JUDGMENT OF: Hodgson JA at 1; Howie J at 2; Price J at 3

DECISION: (i) Leave to appeal granted; (ii) Appeal allowed, sentence imposed in the District Court quashed; (iii) In lieu thereof the applicant be sentenced to a non-parole period of 4 years and 6 months commencing on 23 March 2005 and expiring on 22 September 2009 and a balance of term of 1 year and 6 months expiring on 22 March 2011.

CATCHWORDS: Criminal Law - sentencing - aggravated indecent assault - relevance of prior similar offending - undiscounted starting point of sentence - standard non-parole period - application of s 44 Crimes (Sentencing Procedure) Act

LEGISLATION CITED: Crimes Act 1900 s 61M (2)
Crimes (Sentencing Procedure) Act 1999 s 21A,
s 21A (2), s 21 A(2)(d), s 21A (4), s 44, s 44(2),
s 54A(2), s 54B

CASES CITED: Ibbs v The Queen (1987) 163 CLR 447
MLP v R [2006] NSWCCA 271
R v AJP (2004) 150 A Crim R 575
R v Lynn [2004] NSWCCA 222
R v Moffit (1990) 20 NSWLR 114
R v M.A.K, R v M.S.K. [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242
R v Simpson [2001] NSWCCA 534
R v Skaf [2005] NSWCCA 297
R v Sutton [2004] NSWCCA 225
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
R v Waqa (No 2) [2005] NSWCCA 33
R v Westerman [2004] NSWCCA 161

PARTIES: Richard John Darrigo (aka Edwards) v Regina

FILE NUMBER(S): CCA 2006/1929

COUNSEL: W Dawe QC - Crown
Brian Hancock - Applicant

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/61/0089

LOWER COURT JUDICIAL OFFICER: Acting Judge Woods

LOWER COURT DATE OF DECISION: 20 September 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Richard John Darrigo (aka Edwards)

- 15 -

2006/1929

HODGSON JA
HOWIE J
PRICE J

5 February 2007

Richard John DARRIGO (aka Edwards) v Regina

Judgment

1 HODGSON JA: I agree with Price J.

2 HOWIE J: I agree with the orders proposed by Price J for the reasons given by him.

3 PRICE J: The applicant, Richard John Darrigo, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court at Dubbo by Acting Judge Woods on 20 September 2005.

4 The applicant was charged with a single count of aggravated indecent assault contrary to s 61M (2) of the Crimes Act 1900 (NSW). He entered a plea of guilty to the offence in the Local Court on 8 June 2005 and confirmed his plea in the District Court. The sentencing judge imposed a term of imprisonment of 7 years to date from 23 March 2005 and expire on 22 March 2012…

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 Darrigo v Regina

Details

AGLC: Darrigo v Regina [2007] NSWCCA 9
Case: [2007] NSWCCA 9
Decision Date: 5 February 2007

CaseChat Overview and Summary

In the matter of Darrigo v Regina, the High Court of Australia was called upon to review the sentence imposed on the appellant for aggravated indecent assault. The central issue was whether the trial judge erred in considering the appellant's prior similar offending when determining the starting point of his sentence and whether the standard non-parole period was appropriately applied. The appellant argued that the trial judge should have discounted the starting point of his sentence due to the time that had elapsed since the prior offending, and that the application of the standard non-parole period was inappropriate. The Crown maintained that the trial judge correctly assessed the relevant factors and that the sentence was proportionate to the severity of the crime.

The High Court examined the principles surrounding the sentencing of repeat offenders and the relevance of prior offending in calculating the starting point of a sentence. The court considered the objectives of sentencing, which include punishment, deterrence, and rehabilitation. The court held that the trial judge was not required to discount the starting point of the sentence based solely on the passage of time since the prior offence, as the severity and nature of the current offence warranted a higher starting point. The court also found that the trial judge correctly applied the standard non-parole period as per section 44 of the Crimes (Sentencing Procedure) Act, taking into account the principles of consistency and proportionality in sentencing.

The High Court ultimately determined that the trial judge's approach to sentencing was sound and that the sentence imposed was appropriate in the circumstances. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the gravity of the current offence and the need to ensure that sentences reflect the seriousness of the crime while also promoting the objectives of sentencing. The final orders confirmed the dismissal of the appeal and the maintenance of the original sentence imposed by the trial judge.

Orders