Beech-Jones CJ at CL at [1] Garling J at [12] Yehia J at [13]
Decision:
(1) Leave to appeal is granted
(2) The appeal is allowed
(3) The sentence imposed on the applicant in the District Court on 17 December 2021 is set aside, and in lieu thereof:
(a) impose an aggregate sentence of 7 years and 6 months imprisonment to commence on 3 December 2021 and expire on 2 June 2029;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 4 years and 6 months imprisonment;
(c) specify that the earliest date the applicant will be eligible for parole is 2 June 2026; and
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:
(i) sequence 1 – imprisonment for 4 years;
(ii) sequence 3 – imprisonment for 2 years 9 months;
(iii) sequence 4 – imprisonment for 6 years; and
(iv) sequence 5 – imprisonment for 3 years
Catchwords:
CRIME — APPEALS — Appeal against sentence —Procuring child to engage in sexual activity outside Australia — Persistent sexual abuse of child outside Australia — Whether the sentencing Judge erred in the imposition of a manifestly excessive aggregate sentence — Whether the disproportionately high starting point for the indicative sentence for one offence inflated the aggregate sentence ultimately imposed —Leave to appeal granted — Appeal allowed — Applicant re-sentenced
Legislation Cited:
Crimes(Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b)
[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.
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AGLC
Doig v The King [2023] NSWCCA 76
Case
[2023] NSWCCA 76
Decision Date
CaseChat Overview and Summary
In the case of Doig v The King, the appellant, Doig, was convicted of procuring a child to engage in sexual activity outside Australia and of another offence involving the persistent sexual abuse of a child outside Australia. Doig appealed against the sentence imposed by the sentencing judge, arguing that it was manifestly excessive and that the starting point for the indicative sentence for one offence was disproportionately high, inflating the aggregate sentence ultimately imposed. The High Court of Australia granted leave to appeal and subsequently allowed the appeal. Doig was re-sentenced.
The central legal issues the court had to address were whether the sentencing judge had erred in imposing a manifestly excessive aggregate sentence and whether the starting point for the indicative sentence for one offence was disproportionately high, inflating the aggregate sentence ultimately imposed. The court needed to determine whether the sentence was within the range of what was appropriate and whether the starting point was appropriate in the circumstances.
The court found that the sentencing judge had indeed erred in imposing a manifestly excessive aggregate sentence. The court considered that the starting point for the indicative sentence for one offence was disproportionately high, which inflated the aggregate sentence ultimately imposed. The court determined that the sentence imposed was manifestly excessive and that the starting point for the indicative sentence for one offence was disproportionately high. Consequently, the appeal was allowed, and Doig was re-sentenced.