DL v R

Case [2020] NSWCCA 164


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DL v R [2020] NSWCCA 164
Hearing dates: 24 June 2020
Decision date: 17 July 2020
Before: 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)

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 32, 44, 53A

Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Burgess v R [2019] NSWCCA 13

Cahyadi v Regina [2007] 168 A Crim R 41; [2007] NSWCCA 1

Chong v R [2017] NSWCCA 185

DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32

Dang v R [2014] NSWCCA 47

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [58]; [2010] HCA 45

Hoskins v R [2020] NSWCCA 18

Kresovic v R [2018] NSWCCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Maxwell v R [2020] NSWCCA 94

Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140

Ngati v R [2018] NSWCCA 32

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Robert Borkowski [2009] NSWCCA 102

R v Dennis [2015] NSWCCA 297

R v MR(a pseudonym) [2019] NSWDC 440

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Weir v Regina [2011] NSWCCA 123

Category:Principal judgment
Parties: DL – Applicant
Regina – Respondent Crown
Representation:

Counsel:
R Pontello SC – Applicant
K Ratcliffe – Respondent Crown

Solicitors:
P Williams & Company Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2017/013664
Publication restriction: Yes
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

R v MR (a pseudonym) [2019] NSWDC 440

Date of Decision:
2 May 2019
Before:
Wilson SC DCJ
File Number(s):
2017/013664

JUDGMENT

  1. HOEBEN CJ at CL:

Offences…

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Details
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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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