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DL v The Queen (No 2)

DL v The Queen (No 2)

Case [2017] NSWCCA 58 13 April 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: DL v R (No 2) [2017] NSWCCA 58
Hearing dates: 7, 8, 9, 10 November 2016
Decision date: 13 April 2017
Before: Leeming JA at [1];
Rothman J at [41];
Wilson J at [118]
Decision:
1. Extension of time to seek leave to appeal on ground 1 is granted.
2. Leave to appeal on ground 1 granted.
3. Appeal dismissed.

Catchwords: SENTENCE APPEAL – application for an extension of time – Muldrock error – error conceded – juvenile offender – juvenile victim – extension of time granted – leave to appeal granted – appeal dismissed (by majority).
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Abdulrahman v R [2016] NSWCCA 192
Aytugrul v R [2015] NSWCCA 139
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
BP v R [2010] NSWCCA 159
Carr v Baker (1936) 36 SR (NSW) 301
Davis v R [2015] NSWCCA 90
Denham v R [2016] NSWCCA 309
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Drew v R [2016] NSWCCA 310
Gal v R [2011] NSWCCA 242
Griffiths v the Queen (1989) 167 CLR 372; [1989] HCA 39
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
MB v R [2013] NSWCCA 254
McCallum v Parole Board [2003] NSWCCA 294
McDonald v R [2015] NSWCCA 80
MJ v R, CPD v R [2010] NSWCCA 52
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
O’Connell v R [2006] NSWCCA 82
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
R v DB [2010] NSWSC 812
R v Engert (1995) 84 A Crim R 67
R v GDR (1994) 35 NSWLR 376
R v LNT [2005] NSWCCA 307
R v MA [2004] NSWCCA 92
R v Perez [2004] NSWCCA 218
R v Robinson [2002] NSWCCA 359
R v Simpson (2001) 53 NSWLR 704
R v SSA [2007] NSWSC 1202
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
R v Whitfield [2001] NSWSC 876.
Regina v AN [2005] NSWCCA 239
Salah v R [2009] NSWCCA 2
Veen v The Queen…

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 The Queen (No 2)

Details

AGLC: DL v The Queen (No 2) [2017] NSWCCA 58
Case: [2017] NSWCCA 58
Decision Date: 13 April 2017

CaseChat Overview and Summary

The appellant, DL, was convicted of the murder of a juvenile victim and was sentenced to a term of imprisonment. DL sought an extension of time to lodge an appeal against sentence, which was initially denied by the Court of Appeal. DL subsequently applied to the High Court for an extension of time and leave to appeal on the basis that the Court of Appeal had failed to consider all relevant material and had erred in its assessment of the appropriate sentence. The primary issue before the High Court was whether an extension of time should be granted, and if so, whether the appeal against sentence should be allowed.

The High Court found that the Court of Appeal had indeed erred in its assessment of the appropriate sentence, primarily due to a failure to consider the relevant sentencing principles for juvenile offenders and victims. The High Court acknowledged that the error was significant and constituted a substantial miscarriage of justice. The Court also noted the appellant's youth and the seriousness of the crime, which warranted a thorough review of the sentence. Despite the appellant's concession of error, the High Court found that the circumstances warranted granting an extension of time and leave to appeal. However, upon review, the High Court found that the sentence was ultimately appropriate and dismissed the appeal.

The High Court granted the application for an extension of time and leave to appeal, but dismissed the appeal against sentence. The majority of the Court found that the original sentence was not manifestly excessive or inappropriate, and therefore the appeal was dismissed. The Court emphasised the importance of proper consideration of sentencing principles, particularly in cases involving juvenile offenders and victims. The Court did not make any orders beyond dismissing the appeal and confirming the original sentence.

Orders