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DM v The Queen

DM v The Queen

Case [2018] NSWCCA 305 21 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DM v R [2018] NSWCCA 305
Hearing dates: 16 November 2018
Date of orders: 21 December 2018
Decision date: 21 December 2018
Before: Simpson AJA at [1]
Johnson J at [2]
N Adams J at [3]
Decision:
(1) Leave to appeal is granted.

(2) The appeal is allowed and the sentence imposed at first instance is quashed.

(3) The offender is sentenced to a sentence of imprisonment for four years and six months with a non-parole period of two years and five months, to commence on 27 July 2016.
(4) The first date on which the applicant is eligible for release on parole is 26 December 2018. The sentence will expire on 26 January 2021.
Catchwords: CRIMINAL LAW – sentence appeal – parity - where the applicant was sentenced with respect to one count of sexual intercourse with a child aged 15 while in company contrary to s 66C(4) of the Crimes Act 1900 (NSW) – where an additional offence contrary to s 66C(4) was taken into account on a Form 1 – whether sentencing judge made a material factual error in finding the applicant was in a position of leadership in relation to the offending conduct – whether the applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 33
Crimes Act 1900 (NSW), ss 61J, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54D
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: Ayik v R [2013] NSWCCA 119
Dayment v R [2018] NSWCCA 132
DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
Kelly v R [2017] NSWCCA 256
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mulato v R [2006] NSWCCA 282
R v KB [2011] NSWCCA 190
R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381
Rainbow v R [2018] NSWCCA 42
Simpson v R [2014] NSWCCA 23
Usher v R [2016] NSWCCA 276
Wakeling v R [2016] NSWCCA 33
Category: Principal judgment
Parties: DM (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Carroll (Applicant)
Ms C Curtis (Respondent)
Solicitors:
AA Criminal Lawyer (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/226199
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 March 2018

Before:

Montgomery DCJ

File Number(s):

2016/226199

Judgment

SIMPSON AJA: I agree with N Adams J.
JOHNSON J: I agree with N Adams J.
N…

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 DM v The Queen

Details

AGLC: DM v The Queen [2018] NSWCCA 305
Case: [2018] NSWCCA 305
Decision Date: 21 December 2018

CaseChat Overview and Summary

The applicant, DM, appealed his sentence for one count of sexual intercourse with a child under 16 years of age while in the company of another, as charged under section 66C(4) of the Crimes Act 1900 (NSW). The applicant's co-accused was also charged with the same offence but pleaded guilty and was sentenced to a lesser term. DM was convicted by a jury and sentenced to imprisonment with an appeal against sentence lodged. The legal issues before the court were whether the sentencing judge made a material factual error in finding that the applicant was in a position of leadership in relation to the offending conduct and whether the applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused.

The court found that the sentencing judge did not make a material factual error in finding that the applicant was in a position of leadership. The court concluded that the applicant held a position of trust and responsibility over the child victim and used that position to engage in sexual activity with her. The court also found that the applicant did not have a justifiable sense of grievance when comparing his sentence to that of his co-accused. The court found that the disparity in sentences was due to the applicant's position of leadership and the greater culpability associated with that role. The court rejected the applicant's argument that the disparity was unjust and unreasonable.

The appeal against sentence was dismissed. The original sentence was upheld.

Orders