Hoeben CJ at CL at [1]; Fagan J at [115]; Cavanagh J at [116]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The aggregate sentence imposed by Wilson SC DCJ on 2 May 2019 in the District Court at Gosford is quashed.
(4) In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 20 March 2017 and expiring 19 March 2027, with a balance of term of 3 years and 6 months, expiring 19 September 2030.
Catchwords:
CRIMINAL LAW – sentence appeal – nine counts comprising two indecent assaults, one sexual intercourse without consent, two cause person to take intoxicating substance, four produce child abuse material – sentence of imprisonment for 20 years with a non-parole period of 15 years – whether denial of procedural fairness – whether applicant’s late plea of guilty treated as an aggravating factor – whether sentence imposed manifestly excessive – sentence manifestly excessive – applicant re-sentenced.
Legislation Cited:
Crimes Act 1900 (NSW) – ss 38, 61J(1), 61M(2), 91H(2)
[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.
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AGLC
DL v The Queen [2020] NSWCCA 164
Case
[2020] NSWCCA 164
Decision Date
CaseChat Overview and Summary
The case of DL v R involved a defendant who had been convicted on nine counts, including indecent assault, sexual intercourse without consent, causing a person to take an intoxicating substance, and producing child abuse material. The defendant appealed the sentence of 20 years imprisonment, with a non-parole period of 15 years, arguing that the sentence was manifestly excessive and that the trial judge had denied him procedural fairness by treating his late plea of guilty as an aggravating factor.
The court considered whether the trial judge had erred in treating the defendant’s late plea of guilty as an aggravating factor, which could potentially impact the fairness of the sentencing process. Additionally, the court examined if the sentence imposed was manifestly excessive, taking into account the severity and nature of the offences committed by the defendant. The court had to balance the need for punishment and deterrence with the principles of proportionality and individualised justice.
The court found that the trial judge had indeed erred in treating the defendant's late plea of guilty as an aggravating factor, thus denying procedural fairness. Furthermore, the court concluded that the sentence imposed was manifestly excessive given the circumstances. The court emphasised the importance of individualised sentencing and proportionality in criminal cases. As a result, the sentence was quashed and the defendant was re-sentenced to a term of imprisonment with a non-parole period that reflected the court's considerations of the offences and the principles of justice.