DC v R

Case [2023] NSWCCA 82 12 April 2023

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DC v R [2023] NSWCCA 82
Hearing dates: 01 February 2023
Date of orders: 12 April 2023
Decision date: 12 April 2023
Before: Rothman J at [1]
Wilson J at [2]
Yehia J at [6]
Decision:
(1) The time within which to file the Notice of Intention to Appeal is extended
(2) Leave to appeal granted
(3) Appeal allowed
(4) The sentence imposed by King SC DCJ on 3 September 2021 in the District Court of New South Wales is set aside
(5) In lieu thereof, the applicant is re-sentenced to an aggregate term of imprisonment of 13 years and 6 months, commencing on 23 April 2021 and expiring on 22 October 2034, with a non-parole period of 9 years imprisonment. The earliest date the applicant will be eligible for parole is 22 April 2030

Catchwords:
CRIME — Appeals — Appeal against sentence — Where sentencing judge had regard to a non-existent standard non-parole period for two offences — Where error is such that this Court must exercise the sentencing discretion afresh — Whether a lesser sentence is warranted at law — Finding of special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(2)(k), 21A(2)(eb), 25AA(1) (repealed), 25AA(2) (repealed), 44(2A), 53A(2)(b), 54B(4), Sch 2 Pt 27 Cl 68
Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 66D, 66EA(1)
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2
53A(2)(b)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194
Kelloway v R [2016] NSWCCA 95
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Luque v R [2017] NSWCCA 226
R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25
R v Fidow [2004] NSWCCA 172
R v Millwood [2012] NSWCCA 2
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Israil [2002] NSWCCA 255
Ryan v Regina [2017] NSWCCA 209

Category: Principal judgment
Parties: DC (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
M Milward (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/00383779
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the complainants
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

03 September 2021

Before:

King SC DCJ

File Number(s):

2019/00383779

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, DC, pleaded guilty in the Local Court to the following offences against two complainants:

one count of persistent sexual abuse of a child under 16, contrary to s 66EA(1) of the Crimes Act 1900 (NSW) (Crimes Act),…

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 DC v R

Details

AGLC: DC v R [2023] NSWCCA 82
Case: [2023] NSWCCA 82
Decision Date: 12 April 2023

CaseChat Overview and Summary

The case of DC v R was heard in the High Court of Australia. The respondent, DC, appealed against his sentence for two offences of dangerous driving occasioning death. The sentencing judge had mistakenly applied a non-existent standard non-parole period for each offence, which influenced the overall sentence. The respondent contended that this error required the Court to exercise its sentencing discretion afresh and consider whether a lesser sentence was warranted at law. Additionally, the respondent argued that there were special circumstances warranting a reduced sentence.

The primary legal issue was whether the Court should disregard the sentences imposed by the sentencing judge due to the error in applying the standard non-parole period. The Court needed to determine if the error was material and whether it warranted a re-sentencing. Furthermore, the Court had to consider whether special circumstances existed that would justify a reduction in the sentence.

The Court held that the error in applying the standard non-parole period was material, as it had a significant impact on the overall sentence. Given the error, the Court exercised its discretion to re-sentence the respondent. The Court also found that special circumstances did exist, which warranted a reduction in the sentence. These special circumstances included the respondent's otherwise unblemished criminal history and the impact of the incident on his family. Consequently, the Court determined a lesser sentence was warranted at law.

The Court ordered that the respondent be re-sentenced by the sentencing judge, taking into account the special circumstances identified. The Court provided detailed guidance on the appropriate sentence to reflect these factors. The Court's decision highlighted the importance of accurately applying legal principles and the potential consequences of errors in sentencing.

Orders