DJM v R

Case [2013] NSWCCA 101 6 May 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DJM v R [2013] NSWCCA 101
Hearing dates: 19 March 2013
Decision date: 06 May 2013
Before: Basten JA at [1];
Simpson J at [2];
Blanch J at [3]
Decision:
(1) Leave to appeal be granted.
(2) Appeal allowed.
(3) Impose sentences as follows:
(a) On Count 5 confirm the sentence of 18 months fixed term to date from 8 October 2009;
(b) On Count 1 quash the sentence and impose a sentence of 3 years fixed term to date from 8 April 2010;
(c) On Count 2 confirm the sentence of 7 years fixed term but order the sentence to date from 8 October 2010;
(d) On Count 3 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 October 2011;
(e) On Count 4 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 April 2012;
(f) On Count 6 quash the sentence and taking into account the Form 1 impose a sentence of 7 years non-parole period from 8 October 2012 with a balance of term of 3 years 4 months.
The total effective sentence would be a non-parole period of 10 years with a balance of term of 3 years 4 months. The first date on which the applicant will be eligible for release on parole is 7 October 2019.

Catchwords:
CRIMINAL LAW - sentence appeal - whether sentencing judge took into account irrelevant matter - s 21A(2) Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - sentencing appeal - whether judge found special circumstances - whether sufficient weight given to finding of special circumstances

CRIMINAL LAW - sentence appeal - consideration of plea of guilty

CRIMINAL LAW - sentence appeal - disseminate child pornography - whether manifestly excessive

CRIMINAL LAW - sentence appeal - aggravated sexual intercourse offences - whether manifestly excessive - consideration of Form 1 offences
CRIMINAL LAW - sentence appeal - totality principle - whether total effective sentence is manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61N, 91G, 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited: R v Comert [2004] NSWCCA 125
R v Hudson (Court of Criminal Appeal New South Wales, Spigelman CJ, Sully, Ireland JJ, 30 July 1998, unreported)
R v BJW [2000] NSWCCA 60; 112 A Crim R 1
DBW v Regina [2007] NSWCCA 236
Mill v The Queen [1988] HCA 70; (1988) 106 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Texts Cited: Principles of Sentencing, Thomas, 2nd ed (1979) at 56-57
Category: Principal judgment
Parties: DJM (Applicant)
Regina (Respondent)
Representation:
Counsel:

P Boulten SC (Applicant)
T Smith (Respondent)
Solicitors:
Ford Criminal Lawyers (Applicant)
S Kavanagh (Respondent)

File Number(s): 2009/224553
Decision under appeal

Jurisdiction:

9101

Date of…

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 DJM v R

Details

AGLC: DJM v R [2013] NSWCCA 101
Case: [2013] NSWCCA 101
Decision Date: 06 May 2013

CaseChat Overview and Summary

The appellant, DJM, appealed against his sentence following convictions for multiple sexual offences against children, including disseminating child pornography and aggravated sexual intercourse. The Crown had accepted DJM's plea of guilty, which led to a substantial discount in his sentence. The Court of Criminal Appeal was tasked with determining whether the sentence imposed by the primary judge was manifestly excessive or otherwise unlawful, considering the totality of the circumstances. The appellant argued that the sentence was manifestly excessive and that the primary judge had failed to take into account the plea of guilty appropriately.

The legal issues before the court included whether the primary judge had taken into account any irrelevant matter when sentencing, in breach of section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, and whether the judge had given sufficient weight to the finding of special circumstances. Additionally, the court examined whether the total effective sentence was manifestly excessive, taking into account the totality principle and the appellant's plea of guilty.

The Court of Criminal Appeal found that the primary judge had appropriately considered the plea of guilty and other relevant factors. The court held that the sentence was not manifestly excessive, noting that it was significantly reduced due to the guilty plea. The court concluded that the sentence reflected the gravity of the offences and the need for general deterrence, and that the primary judge had not erred in any way that warranted an appeal.

No orders were made by the court beyond the dismissal of the appeal.

Orders