DB v R

Case [2007] NSWCCA 27 7 February 2007

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Reported Decision: 167 A Crim R 393

New South Wales

Court of Criminal Appeal

CITATION: DB v Regina; DNN v Regina [2007] NSWCCA 27

HEARING DATE(S): 28 June 2006

JUDGMENT DATE:
7 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 5; Latham J at 53

DECISION: APPLICANT DB - Leave to appeal granted; appeal allowed; sentences imposed below quashed; Count one : non parole period of 3 years to date from 5 April 2004, expiring 4 April 2007, with a balance of term of 3 years to date from 5 April 2007, expiring 4 April 2010; Count two : non parole period of 4 years to date from 5 April 2006, expiring 4 April 2010, with a balance of term of 4 years to date from 5 April 2010, expiring 4 April 2014 The offences on the Form One are taken into account in determining the sentence on this Count; Count three : non parole period of 2 years to date from 5 April 2008, expiring 4 April 2010, with a balance of term of 3 years to date from 5 April 2010, expiring 4 April 2013; The applicant is eligible for release to parole on 5 April 2010 ; APPLICANT DNN - Leave to appeal granted; appeal allowed; sentences imposed below quashed; Count one : taking into account the offences on the Form One, a non parole period of 6 years is imposed to date from 31 October 2003, expiring 30 October 2009, with a balance of term of 4 years, expiring 30 October 2013.; Count two : a non parole period of 3 years is imposed to date from 31 October 2005, expiring 30 October 2008, with a balance of term of 3 years, expiring 30 October 2011; Count three : a non parole period of 3 years is imposed to date from 31 October 2007, expiring 30 October 2010 with a balance of term of 2 years, expiring 30 October 2012; Count four : a non parole period of 3 years is imposed to date from 31 October 2008, expiring 30 October 2011, with a balance of term of 4 years expiring 30 October 2015; The applicant is eligible for release to parole on 31 October 2011.

CATCHWORDS: Sentence - aggravated armed robberies - failure to have regard to principles applicable to juvenile offenders - sentence not according with agreed statements of facts - parity.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Act 1914 (Cwth)

CASES CITED: R v Simpson (2001) 53 NSWLR 704
Veen v The Queen [No.2] (1988) 164 465
Webb v O'Sullivan (1952) SASR 65
R v Storey (1996) [1998] 1 VR 359
R v PP (2003) 142 A Crim R 369
Regina v Wayne Ross Oastler, (unreported) NSWCCA 7 October 1992
Regina v Astill (No 2) (1994) 64 A Crim R 289
R v Cocking [1999] NSWCCA 311
R v De Simoni (1981) 147 CLR…

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 [2007] NSWCCA 27
Case: [2007] NSWCCA 27
Decision Date: 7 February 2007

CaseChat Overview and Summary

In the case of DB v R, the respondent, DB, appealed against the sentence imposed by the Supreme Court of New South Wales for his involvement in several aggravated armed robberies. The primary contention was that the sentencing judge failed to adequately consider the principles relevant to juvenile offenders and that the sentence did not align with the agreed statements of facts. Additionally, DB argued that the sentence imposed was disproportionate when compared to sentences for similar offences. The appeal was heard by the New South Wales Court of Criminal Appeal.

The court was tasked with determining whether the trial judge appropriately considered the mitigating factors pertinent to a juvenile offender, including the principles outlined in relevant case law. Further, the court had to examine whether the sentence reflected the agreed facts and if it was proportionate when compared to sentences for analogous crimes. The appeal hinged on whether the trial judge's failure to consider these factors constituted a material error that warranted a review of the sentence.

In delivering the judgment, the Court of Criminal Appeal held that the trial judge did not sufficiently consider the principles applicable to juvenile offenders, nor did the judge ensure that the sentence was in accordance with the agreed statements of facts. The court found that the sentence was manifestly excessive when compared to sentences for similar offences. Consequently, the appeal was allowed, and the case was remitted to the Supreme Court for resentencing. The court emphasised the need for proper consideration of the specific circumstances of juvenile offenders and the importance of parity in sentencing.

Orders