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, 53ACases 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 25Category: Principal judgment Parties: DG – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
D Kell SC/M Pulsford – Applicant
D Carroll/PD Swaine – Respondent Crown
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…
Continue reading DG v R
Sign in free to access the full text
- AGLC
- DG v R [2017] NSWCCA 139
- Case
- [2017] NSWCCA 139
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.