De v The Queen

Case [2021] NSWCCA 315


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DE v R [2021] NSWCCA 315
Hearing dates: 22 November 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Before: Bathurst CJ at [1];
Wright J at [7];
Wilson J at [106]
Decision:

(1) Grant the applicant leave to appeal.

(2) Appeal dismissed.

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — applicant with significant intellectual disability — principles in Bugmy v The Queen enlivened — sentence not outside the range of sentences reasonably available — leave to appeal granted — appeal dismissed

CRIME — sexual offences — sexual assault

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Crimes Act 1900 (NSW), ss 61I, 61L, 66EB, 578A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:

Badans v R [2012] NSWCCA 97

BB v The Queen [2021] NSWCCA 283

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Elwood v R [2019] NSWCCA 315

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Tepania v R [2018] NSWCCA 247

Windle v R [2011] NSWCCA 277

Category:Principal judgment
Parties: DE (Applicant)
Regina (Respondent)
Representation:

Counsel:
T Quilter (Applicant)
A Morris (Respondent)

Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/00214827
Publication restriction: It is noted that s 578A of the Crimes Act 1900 (NSW) prohibits the publication of the applicant’s name, or any information or material that identifies or is likely to lead to the identification of the complainant of the prescribed sexual offences referred to in this matter.
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 94

Date of Decision:
09 April 2020
Before:
Lerve DCJ
File Number(s):
2017/00214827

Judgment

  1. BATHURST CJ: I have had the advantage of reading the judgment of Wright J in draft. His Honour has set out the facts and the relevant legal principles in a manner with which I entirely concur.

  2. I also agree with his Honour’s criticism of the approach taken by the sentencing judge to the evidence of Ms Lucas and of the manner he approached the “Bugmy principles”: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

  3. Notwithstanding, even giving full weight to the applicant’s significant intellectual disability and to his deprived background in the manner referred to in the High Court in Bugmy, I am unable to conclude that the sentence imposed on…

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De v The Queen [2021] NSWCCA 315
Case
[2021] NSWCCA 315
Decision Date

CaseChat Overview and Summary

The applicant, De, was convicted of sexual assault and sought leave to appeal against the sentence imposed by the Court of Appeal. The appeal was heard by the High Court of Australia, which had to determine whether the applicant was entitled to leave to appeal on the ground that the sentence was a manifest excess. The applicant had a significant intellectual disability and raised the principles established in Bugmy v The Queen as relevant to the case. The court had to consider whether the sentence was outside the range of sentences reasonably available given the circumstances of the case.

The High Court considered the principles set out in Bugmy v The Queen and acknowledged the importance of considering the impact of an offender's intellectual disability on their culpability and sentence. The court noted that the applicant's intellectual disability significantly affected his capacity to understand and respond to the criminal justice system, which had to be taken into account when assessing the severity of the sentence. The court also considered the principles of proportionality and the need for a sentence that reflects the seriousness of the offence, while also taking into account the individual circumstances of the offender.

After considering the principles in Bugmy and the individual circumstances of the case, the High Court found that the sentence was not outside the range of sentences reasonably available. The court acknowledged that the applicant's intellectual disability had a significant impact on his culpability and sentence, but ultimately concluded that the sentence was proportionate to the seriousness of the offence. The court granted leave to appeal but dismissed the appeal on the basis that the sentence was not a manifest excess.

The High Court did not make any orders altering the sentence imposed by the Court of Appeal. The applicant's conviction for sexual assault remained in place, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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