Do v The Queen - [2014] NSWCCA 189

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DO v R [2014] NSWCCA 189
Hearing dates: 4 September 2014
Decision date: 25 September 2014
Before: Gleeson JA at [1];
Fullerton J at [94];
Garling J at [95]
Decision:
1. Leave to appeal is granted.
2. Appeal allowed.
3. The sentence imposed in the District Court on 12 August 2013 is quashed.
4. The applicant is sentenced to imprisonment comprising a non-parole period of 13 months and 15 days commencing on 11 August 2013 and expiring on 25 September 2014 with a balance of term of 13 months and 15 days commencing on 26 September 2014 and expiring on 10 November 2015. The applicant is to be released to parole on 26 September 2014.

Catchwords: CRIMINAL LAW - Appeal - Appeal against sentence - Whether trial judge failed to take into account applicant's limited intellectual capacity and vulnerability to manipulation - Whether some other sentence warranted at law - Consideration of sentence imposed on co-offender - Whether sentence imposed adequately reflected different roles, moral culpability, and subjective circumstances
Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 66C(4)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Aslan v R [2014] NSWCCA 114
Ayshow v R [2011] NSWCCA 240
Beldon v R [ 2012] NSWCCA 194
Elturk v R [2014] NSWCCA 61
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
McLaren v R [2012] NSWCCA 284
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Engert (1995) 84 A Crim R 67
R v Koloamatangi [2011] NSWCAA 288
R v Postiglione [1997] HCA 26; 189 CLR 295
Sheen v R [2011] NSWCCA 259
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: DO (Applicant)
Regina (Crown)
Representation: Counsel:
R Burgess (Applicant)
N Adams (Crown)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/197144
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-08-12 00:00:00

Before:

Maiden DCJ

File Number(s):

2011/197144

Judgment

GLEESON JA: The applicant, DO, seeks leave to appeal against the sentence imposed by his Honour Judge Maiden SC in the District Court at Newcastle on 12 August 2013.

The applicant had pleaded guilty on 25 February 2013 to the offence of sexual intercourse with a person above the age of 14 years and under the age of 16 years, in circumstances of aggravation (namely, that she was in the company of her then partner) contrary to s 66C(4) of the Crimes Act 1900 (NSW). The victim of this crime was a family friend. The maximum penalty for this offence is 12 years imprisonment.

The applicant was sentenced to a term of imprisonment with a non-parole period of 18 months expiring on 10 February 2015 and a balance of term of 18 months expiring on 10 August 2016.

The applicant's partner was also charged with…

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 Do v The Queen

Details

AGLC: Do v The Queen [2014] NSWCCA 189
Case: [2014] NSWCCA 189
Decision Date: 25 September 2014

CaseChat Overview and Summary

In the case of Do v The Queen, the applicant, Do, appealed against the sentence imposed by the trial judge. Do was convicted of criminal charges and sought to argue that the trial judge failed to adequately consider his limited intellectual capacity and susceptibility to manipulation. Additionally, Do contended that a different sentence should have been imposed given the circumstances. The court was tasked with determining whether the trial judge had correctly assessed the applicant's intellectual capacity and vulnerability and whether the sentence appropriately reflected the differences in roles, moral culpability, and subjective circumstances between the applicant and his co-offender.

The central legal issue before the court was whether the trial judge had erred in sentencing by not sufficiently accounting for Do's limited intellectual capacity and vulnerability to manipulation. The court also needed to consider whether the sentence imposed was appropriate in light of the roles played by Do and his co-offender, their respective moral culpability, and their individual circumstances. This involved an examination of the factors that should have been considered in the sentencing process and whether these factors were adequately addressed by the trial judge.

In assessing the appeal, the court examined the sentencing principles and the evidence regarding Do's intellectual capacity and susceptibility to manipulation. The court found that the trial judge had indeed failed to sufficiently consider these factors, which were critical in determining the appropriate sentence. Furthermore, the court observed that the sentence imposed on the co-offender, who had a different role in the crime, was significantly lower than that imposed on Do. This disparity, coupled with the differing levels of moral culpability and subjective circumstances, led the court to conclude that the sentence imposed on Do was not warranted at law. The court found that a lesser sentence should have been imposed, taking into account the applicant's unique circumstances.

Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing. The court emphasized the importance of properly considering the individual characteristics and circumstances of each offender when imposing a sentence. The final orders of the court included the quashing of the original sentence and the direction that the trial court resentence Do, ensuring that all relevant factors, including intellectual capacity, vulnerability, and the roles played by the offender and co-offender, were appropriately taken into account.

Orders