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De v The Queen

De v The Queen

Case [2021] NSWCCA 315 21 December 2021

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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

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.
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”).
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…

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 De v The Queen

Details

AGLC: De v The Queen [2021] NSWCCA 315
Case: [2021] NSWCCA 315
Decision Date: 21 December 2021

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