DG v R

Case [2017] NSWCCA 139 21 June 2017

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: DG v R [2017] NSWCCA 139
Hearing dates: 2 June 2017
Date of orders: 21 June 2017
Decision date: 21 June 2017
Before: Hoeben CJ at CL at [1 ];
Garling J at [75];
Bellew J at [76]
Decision:
(1)   Leave to appeal against sentence is granted.
(2)   The appeal against sentence is allowed.
(3)   The aggregate sentence imposed by Buscombe DCJ on 24 March 2016 is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 April 2015 and expiring 1 April 2025, with a balance of term of 5 years expiring 1 April 2030.

Catchwords: CRIMINAL LAW – sentence appeal – counts of aggravated indecent assault and aggravated sexual assault with two aggravated sexual intercourse offences on a Form 1 – aggregate sentence of imprisonment for 15 years with a non-parole period of 11 years – whether proper effect given to a finding of special circumstances – whether error in an indicative sentence required a change to the aggregate sentence – offences serious involving offending for 4½ years – failure to adequately reflect finding of special circumstances in sentence – no error in indicative sentences – appeal allowed – need to resentence.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61J, 61M, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 32, 33, 44, 53A
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
CM v R [2013] NSWCCA 341
Fayad v R [2017] NSWCCA 81
MD v R [2015] NSWCCA 37
R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
R v DG (District Court (NSW), Buscombe DCJ, 24 March 2016, unrep)
R v Nykolyn [2012] NSWCCA 219
Sabongi v R [2015] NSWCCA 25
Category: Principal judgment
Parties: DG – Applicant
Regina – Respondent Crown
Representation:
Counsel:
D Kell SC/M Pulsford – Applicant
D Carroll/PD Swaine – Respondent Crown
Solicitors:
SJT Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/98225
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 March 2016

Before:

Buscombe DCJ

File Number(s):

2015/98225

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court on 20 November 2015 as follows:

Three counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act 1900 (NSW) for which the maximum sentence is imprisonment for 7 years with a standard non-parole period of 5 years.
One count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act for which the maximum sentence is imprisonment for 20 years with a standard non-parole period of 10 years.

Two further offences were placed on a Form 1 to be taken into…

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 DG v R

Details

AGLC: DG v R [2017] NSWCCA 139
Case: [2017] NSWCCA 139
Decision Date: 21 June 2017

CaseChat Overview and Summary

In the case of DG v R, the appellant, DG, was convicted of multiple serious sexual offences, including aggravated indecent assault, aggravated sexual assault, and two counts of aggravated sexual intercourse, all committed against a Form 1. The case was heard in the Court of Appeal, where DG appealed against his sentence. The primary focus of the appeal was the aggregate sentence of 15 years imprisonment, with an 11-year non-parole period, and whether the trial judge had properly considered the special circumstances of the case.

The legal issues at the heart of the appeal revolved around the trial judge's handling of special circumstances and the accuracy of the indicative sentences provided. DG contended that the trial judge failed to adequately reflect the finding of special circumstances in the final sentence, and that an error in the indicative sentences necessitated a change to the aggregate sentence. The prosecution argued that the trial judge had correctly applied the law and that there was no basis to alter the sentence.

The Court of Appeal found that, while the trial judge had correctly identified special circumstances, these were not adequately reflected in the final sentence. The court noted that the offences were severe, with the offending period spanning 4½ years, and that the trial judge's consideration of special circumstances was not sufficiently integrated into the overall sentence. Additionally, the court found no error in the indicative sentences. Consequently, the appeal was allowed, and the case was remitted to the trial court for resentencing to ensure the proper effect of the special circumstances finding.

Orders