DL v R

Case [2018] NSWCCA 302 21 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: DL v R [2018] NSWCCA 302
Hearing dates: 9 November 2018
Date of orders: 21 December 2018
Decision date: 21 December 2018
Before: Basten JA at [1];
Schmidt J at [78];
Fagan J at [80]
Decision:
(1)   Allow the appeal and set aside the sentence imposed on 14 November 2008.

(2)   Resentence the offender to a non-parole period of 13 years to date from 19 July 2005 with a further term of 5 years, giving a sentence of 18 years imprisonment.
(3)   The offender became eligible for parole on 19 July 2018. The sentence will expire on 18 July 2023.
Catchwords:
SENTENCING – appeals against sentence –law to be applied by court on resentencing – law amended after initial sentencing hearing so that standard non-parole period no longer applied to offender under 18 years of age – amendment favourable to offender – whether offender to be resentenced according to law at time of resentencing – relevance of principles concerning admission of evidence of post-sentence conduct – Criminal Appeal Act 1912 (NSW), s 6(3) – Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)

SENTENCING – appeal against sentence – prosecutor conceded Muldrock error – prosecutor withdrew concession that sentence appealed from required “adjustment” – extent to which regard should be had to sentencing judgment below when resentencing

SENTENCING – appeal against sentence – resentencing – murder –offender under 18 years of age at time of offence – stabbed victim 48 times in chest – no apparent motive for attack –offender suffered some form of mental disability at time of offence –no acceptance of responsibility for offence – particularly difficult experience of prison –whether lesser sentence warranted in law
SENTENCING – sentencing procedure – comparable cases – relevance of sentences in other cases and judicial commission statistics
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54D; Sch 2, cll 45, 57, 60
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), s 2; Sch 1[8]
Crimes Act 1958 (Vic), s 568
Criminal Appeal Act 1912 (NSW), ss 6, 12
Criminal Appeal Act 1968 (UK), s 11
Criminal Code 1899 (Qld), s 668E
Criminal Law Consolidation Act 1935 (SA), s 353
Criminal Procedure Act 1921 (SA), s 158
Cases Cited: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Crump v R [2016] NSWCCA 2
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCA 194
DL v R (No 2) [2017] NSWCCA 58
DL v The Queen [2018] HCA 32; 92 ALJR 764
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014]…

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 DL v R

Details

AGLC: DL v The Queen [2018] NSWCCA 302
Case: [2018] NSWCCA 302
Decision Date: 21 December 2018

CaseChat Overview and Summary

The appeal in DL v R concerns the resentencing of an offender, DL, who was under 18 years of age at the time of committing a murder by stabbing the victim 48 times in the chest. The case was heard in the New South Wales Court of Criminal Appeal, where the original sentence imposed by the trial judge was under appeal. The appeal was based on various grounds, including the application of the law at the time of the resentencing hearing, the relevance of the principles concerning the admission of evidence of post-sentence conduct, and the application of sentencing principles to the facts of the case.

The court had to decide whether the resentencing of DL should be conducted under the law as it stood at the time of the resentencing hearing, given that the law had been amended to remove the standard non-parole period for offenders under 18 years of age. The court also had to consider the extent to which the sentencing judgment below should be taken into account when resentencing, particularly in light of the prosecutor's concession of a Muldrock error and the withdrawal of the concession that the sentence appealed from required an adjustment. The court further had to consider the relevance of sentences in other cases and judicial commission statistics when determining the appropriate sentence for DL.

In determining the appropriate sentence for DL, the court held that the resentencing should be conducted in accordance with the law as it stood at the time of the resentencing hearing, given the amendment that removed the standard non-parole period for offenders under 18 years of age. The court held that the principles concerning the admission of evidence of post-sentence conduct were relevant to the resentencing process, but that the sentencing judgment below should not be given undue weight. The court held that the sentence imposed by the trial judge was too severe, given the offender's age at the time of the offence, the lack of a clear motive, the offender's mental disability, and the lack of acceptance of responsibility. The court held that a lesser sentence was warranted in law, and reduced the sentence imposed by the trial judge. The court ordered that DL be resentenced in accordance with the law as it stood at the time of the resentencing hearing, with a non-parole period of 12 years.

Orders