Doig v The King

Case [2023] NSWCCA 76


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Doig v R [2023] NSWCCA 76
Hearing dates: 09 March 2023
Date of orders: 5 April 2023
Decision date: 05 April 2023
Before: 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)

Crimes Act 1914 (Cth), Div 2

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019

Criminal Code Act 1899 (Qld), s 228D

Criminal Code Act 1995 (Cth), ss 272.11, 272.11(1), 272.22(1)(a), 272.11(1)(b), 272.11(1)(c), 272.14(1), 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.19(1), 474.19(1), 474.22(1)(a)(i), 474.22A(1), Div 272, Subdiv B

Cases Cited:

Baden v R [2020] NSWCCA 23

Baker v R [2022] NSWCCA 195

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433

Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301

DS v R; DM v R [2022] NSWCCA 156

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kentwell v The Queen (2014) 252 CLR 601;

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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.

Orders

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