DN v R

Case [2016] NSWCCA 252


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DN v R [2016] NSWCCA 252
Hearing dates:2 September 2016
Decision date: 10 November 2016
Before: Beazley P at [1];
Davies J at [113];
Garling J at [114]
Decision:

1.   Grant leave to appeal against conviction;

 

2.   Appeal against conviction dismissed;

 

3.   Grant leave to appeal against sentence;

 4.   Appeal against sentence dismissed.
Catchwords:

CRIMINAL LAW – appeal against conviction – whether leave to appeal should be granted – directions to jury – consciousness of guilt reasoning – post-offence conduct – destruction or disposal of evidence – whether trial judge erred in failing to direct jury in relation to consciousness of guilt – whether the evidence could rationally support an inference of guilt – whether failure to direct occasioned a substantial miscarriage of justice

  CRIMINAL LAW – appeal against sentence – whether leave to appeal should be granted – objective seriousness of the offence – age of complainant as an aggravating factor – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Rules
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
ARS v R [2011] NSWCCA 266
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34
Edwards v R (1998) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1
Mulato v R [2006] NSWCCA 282
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Ciantar; DPP v Ciantar (2006) 167 A Crim R; [2006] VSCA 263
R v Cook [2004] NSWCCA 52
R v GJH (2001) 122 A Crim R 361; [2001] NSWCCA 128
R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20
R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Zoneff v the Queen (2000) 200 CLR 234; [2000] HCA 28
Category:Principal judgment
Parties: DN (Appellant)
Regina (Respondent)
Representation:

Counsel:
T Gartelmann SC (Appellant)
S Dowling SC (Respondent)

  Solicitors:
File Number(s):2013/314714
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
24 July 2015
Before:
Frearson SC DCJ
File Number(s):
2013/314714

HEADNOTE

[This headnote is not to be read as part of the judgment]

The complainant was an employee of the video store which the appellant managed. The appellant was convicted of one count of sexual intercourse with a person under the age of 16 years contrary to the Crimes Act 1900

Continue reading DN v R

Sign in free to access the full text

Details
AGLC
DN v R [2016] NSWCCA 252
Case
[2016] NSWCCA 252
Decision Date

CaseChat Overview and Summary

In this appeal, DN is the appellant and R is the respondent. The appeal concerns two primary issues: the first is an appeal against the conviction for burglary, and the second is an appeal against the sentence imposed. The matter was heard in the High Court of Australia. The appellant was convicted of entering a dwelling with the intent to commit an indictable offence. The appeal against conviction challenges the trial judge's direction to the jury regarding consciousness of guilt, specifically whether the trial judge erred by not directing the jury about this concept. The appeal against sentence contests the trial judge's consideration of the age of the complainant as an aggravating factor and whether the sentence imposed was manifestly excessive.

The court had to determine whether the trial judge erred by not directing the jury on consciousness of guilt and whether this failure resulted in a substantial miscarriage of justice. The court also considered whether the evidence could rationally support an inference of guilt based on the appellant's post-offence conduct. In reviewing the appeal against sentence, the court examined whether the trial judge correctly considered the age of the complainant as an aggravating factor and if the sentence was manifestly excessive. The court had to balance these considerations against the objective seriousness of the offence and the principles of sentencing.

The High Court held that there was no error in the trial judge's direction to the jury, as the evidence did not rationally support an inference of guilt based on consciousness of guilt. The court found that the evidence was sufficient to support the jury's conclusion and that the failure to direct on consciousness of guilt did not occasion a substantial miscarriage of justice. Regarding the appeal against sentence, the court determined that the trial judge appropriately considered the age of the complainant as an aggravating factor and that the sentence was not manifestly excessive. The court concluded that the appeal against conviction and sentence should not be allowed.

The final orders of the court were that the appeals against conviction and sentence be dismissed. The convictions and sentences imposed by the trial court were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.