DB v R

Case [2024] NSWCCA 18 22 February 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DB v R [2024] NSWCCA 18
Hearing dates: 30 January 2024
Date of orders: 22 February 2024
Decision date: 22 February 2024
Before: Davies J at [1]
Hamill J at [2]
Huggett J at [28]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal against sentence is allowed.
(3)   The sentence imposed by Judge McGrath SC is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment for 19 years commencing on 31 March 2021 and expiring on 30 March 2040 with a non-parole period of 14 years and 3 months expiring on 30 June 2035.
(4) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I vary the commencement date of the applicant’s aggregate fixed term of imprisonment of 20 months imposed by Walmsley SC ADCJ (2021/00228705) to 30 April 2034. The effect of that variation will be that the sentence will expire on 29 December 2035 (and not 29 March 2036).

Catchwords:
CRIMINAL LAW – sentence appeal – applicant sentenced in relation to a number of contact and non-contact sexual offences – whether the sentencing judge made a finding of special circumstances – the non-parole period was greater than the statutory ratio – approach to re-sentencing – whether discrete matter or arithmetical error – tension in authorities – where parties agree full re-sentencing is required – unfairness – offender resentenced (but only in so far as the non-parole period)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Christian v R [2021] NSWCCA 300
CM v R [2013] NSWCCA 341
Davis v R [2015] NSWCCA 90
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Maglis v The Queen [2010] NSWCCA 247
Maglovski v R [2014] NSWCCA 238
McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155
O’Connell v R [2016] NSWCCA 43
R v Bolamatu [2002] NSWCCA 454
Sausa v R [2023] NSWCCA 95
Sharrock [1999] NSWCCA 289
Tenenboim v R [2024] NSWCCA 1
Turnbull v R [2019] NSWCCA 97

Category: Principal judgment
Parties: DB (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Rajalingam (Applicant)
V Garrity (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/0090749; 2021/0090750; 2021/00181559
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 September 2022

Before:

McGrath SC DCJ

File Number(s):

2021/0090749; 2021/0090750; 2021/00181559

JUDGMENT

DAVIES J: I agree with Huggett J.
HAMILL J: I have the considerable advantage of having read the judgment of Huggett J which was circulated in draft form. I agree with the orders proposed by her Honour and with her reasons. I make the following additional observations.

Error in the sentencing process

I agree with Huggett J that there…

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 DB v R

Details

AGLC: DB v R [2024] NSWCCA 18
Case: [2024] NSWCCA 18
Decision Date: 22 February 2024

CaseChat Overview and Summary

The applicant, DB, was sentenced in the County Court of Victoria for a series of sexual offences. DB appealed the sentence on the basis that the sentencing judge did not make a finding of special circumstances and that the non-parole period was greater than the statutory ratio. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, where the court had to determine whether the sentence imposed was manifestly inadequate or excessive, and whether the sentence should be varied.

The legal issues before the court included whether the sentence imposed by the primary judge was manifestly inadequate or excessive, and whether the sentence should be varied. The court also considered whether the sentencing judge made an error in failing to find special circumstances and whether the non-parole period was greater than the statutory ratio. The court acknowledged the tension in the authorities regarding whether an error in sentencing is arithmetical or discrete and whether it requires a full re-sentencing or not.

The court found that the sentencing judge did not make a finding of special circumstances, and the non-parole period was greater than the statutory ratio. The court held that the error was not an arithmetical error, but a discrete one, which required full re-sentencing. The court further held that the sentence imposed by the primary judge was manifestly inadequate, and it was unfair to the applicant. The court varied the sentence to reflect the correct approach to sentencing, and the applicant was resentenced with a non-parole period that aligned with the statutory ratio. The court emphasised the importance of ensuring that sentencing is fair and just and that the sentencing judge considers all relevant factors in determining the appropriate sentence.

Orders