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DB v The King

DB v The King

Case [2023] NSWCCA 323 15 December 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DB v R [2023] NSWCCA 323
Hearing dates: 23 June 2023
Date of orders: 23 June 2023
Decision date: 15 December 2023
Before: Simpson AJA at [1]
Lonergan J at [2]
Dhanji J at [78]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The sentence imposed by Colefax SC DCJ on 7 March 2022 is quashed and in lieu thereof the following sentence is imposed. An aggregate sentence of 2 years, commencing on 7 March 2022 and expiring on 6 March 2024, with a non-parole period of 1 year commencing on 7 March 2022 and expiring 6 March 2023.
(4) The Court notes that the applicant is entitled to immediate release to parole.

Catchwords:
CRIMINAL LAW – appeal – pleas of guilty – appeal against sentence – insufficient regard to psychologist’s report – whether the sentencing judge failed to consider and apply De La Rosa principles to the applicant’s circumstances – error found – applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kelley v R [2021] NSWCCA 173
Moiler v R [2021] NSWCCA 73
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Category: Principal judgment
Parties: DB (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Averre / H Thomas-Dubler (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/00287992
Publication restriction: The non-publication orders made pending appeal are to continue.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 February 2022

Before:

Justice Colefax SC

File Number(s):

2020/00287992

JUDGMENT

SIMPSON AJA: I joined in the orders made by this Court on 23 June 2023 for the reasons given by Lonergan J.
LONERGAN J: The applicant, DB sought leave to appeal against the sentence imposed upon him in the District Court at Campbelltown on 7 March 2022. He had entered guilty pleas in the Local Court to charges of incite bestiality and incite incest with a person aged over 16 years.
The sentencing judge, Colefax SC DCJ, imposed an aggregate term of imprisonment of 4 years with a non-parole period of 2 years imprisonment.
The offences, corresponding maximum penalties, the sentencing judge’s findings of objective seriousness and the indicative sentences specified by his Honour are set out in the following table:

Offence

Maximum penalty

Findings of objective seriousness

Indicative sentence

Sequence 1: Incite bestiality

ss 79, 80G Crimes Act 1900

14 years imprisonment

Within the mid-range

3 years imprisonment

Sequence 2: incite incest with person aged over 16 years

ss 78A, 80G Crimes Act 1900

8 years imprisonment

Slightly below the mid-range

2 years and 3 months imprisonment

This appeal was heard on 23 June 2023. The Court had the benefit of written…

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 The King

Details

AGLC: DB v The King [2023] NSWCCA 323
Case: [2023] NSWCCA 323
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case of DB v The King involved the appellant who pleaded guilty to a number of serious charges. The primary legal issue was whether the sentencing judge had sufficiently considered and applied the principles set out in De La Rosa to the appellant's circumstances, particularly in light of a psychologist's report that detailed the appellant's mental health issues. The appellant argued that the sentencing judge had failed to appropriately weigh these factors, resulting in an unduly harsh sentence. The Court of Appeal was required to determine whether the sentencing judge's failure to consider the psychologist's report constituted an error of law that warranted a resentencing.

The Court of Appeal found that the sentencing judge had indeed failed to adequately consider and apply the principles outlined in De La Rosa. The psychologist’s report highlighted significant mental health issues that should have been given more weight during sentencing. The Court noted that the sentencing judge had not explicitly addressed the mitigating factors presented in the report, which was a critical omission. The failure to properly consider these factors amounted to an error of law, leading the Court to conclude that the sentence was manifestly inadequate. The appellant's appeal was allowed, and the case was remitted for resentencing.

In light of the Court's findings, the appellant was resentenced, with due consideration given to the psychologist’s report and the principles of De La Rosa. The new sentence took into account the appellant's mental health issues and other mitigating circumstances, ensuring a more balanced and appropriate outcome. The Court emphasised the importance of fully considering all relevant factors in sentencing, particularly those that could significantly impact the offender’s rehabilitation and reintegration into society.

Orders