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Dousha v R

Dousha v R

Case [2008] NSWCCA 263 1 December 2008

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DOUSHA, Malcolm Ross v R [2008] NSWCCA 263

FILE NUMBER(S):
2007/5276

HEARING DATE(S):
30 September 2008

JUDGMENT DATE:
1 December 2008

PARTIES:
Malcolm Ross Dousha (Applicant)
The Crown (Respondent)

JUDGMENT OF:
Bell JA Latham J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/21/0386

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:
2 November 2007

COUNSEL:
K Earl (Applicant)
L Wells (Respondent)

SOLICITORS:
Goodman James Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
six counts of assault with an act of indecency with a child under 16 years
one count of sexual intercourse with a child above the age of 10 and under the age of 16
one count of sexual intercourse with a child under 10 years
whether sentencing regime at time of offences resulted in generally lower sentences than presently imposed
specification of non-parole period for offences committed prior to the introduction of Crimes (Sentencing Procedure) Act 1999
partially accumulated sentence

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Parole of Prisoners Act 1966
Probation and Parole Act 1983
Sentencing Act 1989

CATEGORY:
Principal judgment

CASES CITED:
AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Bradbury v R [2008] NSWCCA 93
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Clare v R [1984] 2 NSWLR 522
Featherstone v R [2008] NSWCCA 71
GAT v R [2007] NSWCCA 208
Ibbs v The Queen (1987) 163 CLR 447
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Cunningham [2006] NSWCCA 176
R v JCW [2000] NSWCCA 209; 112 A Crim R 466
R v Jordan [1983] NSWCCA 254
R v KM [2004] NSWCCA 65
R v Lyne [1982] NSWCCA 84
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v PGM [2008] NSWCCA 172
Ryan v R [2001] HCA 21; 206 CLR 267

TEXTS CITED:

DECISION:
1. Leave to appeal is granted.
2. The sentence imposed for count 8 is quashed and in substitution the applicant is sentenced to a non-parole period of 1 year to commence on 5 October 2011 and to conclude on 4 October 2012 with an additional term of 5 years and 6 months.
3. The sentences imposed in respect of counts 1 to 7 are confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/5276
BELL JA
LATHAM J
FULLERTON J
1 DECEMBER 2008

R v MALCOLM ROSS DOUSHA

JUDGMENT

BELL JA: I agree with Fullerton J.
LATHAM J: I agree with Fullerton J.
FULLERTON J: This is an application for leave to appeal against the severity of sentences imposed by Ainslie-Wallace J in the District Court on 2 November 2007.
On 5 October 2007 the applicant pleaded guilty to an indictment containing six counts of assault with an act of indecency with a child under 16 years contrary to s 61E(1)(A) of the Crimes Act 1900, for…

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 Dousha v R

Details

AGLC: Dousha v R [2008] NSWCCA 263
Case: [2008] NSWCCA 263
Decision Date: 1 December 2008

CaseChat Overview and Summary

The case of Dousha v R involves an appellant who was convicted of multiple serious sexual offences involving children. The respondent, the Crown, sought to appeal the sentence imposed by the lower court. The appellant was convicted of six counts of assault with an act of indecency with a child under 16 years, one count of sexual intercourse with a child above the age of 10 and under the age of 16, and one count of sexual intercourse with a child under 10 years. The legal issues central to this appeal centred on the appropriate sentencing regime applicable to the appellant's offences, specifically whether the sentencing regime in effect at the time of the offences resulted in generally lower sentences than those currently imposed. Additionally, the court had to determine the appropriate non-parole period for the offences committed prior to the introduction of the Crimes (Sentencing Procedure) Act 1999, and whether the sentence should be partially accumulated.

The court examined the legislative changes and their impact on sentencing, noting that the applicable sentencing regime at the time of the offences was indeed different from the current one, potentially leading to lower sentences. The court considered the principles of parity and proportionality in sentencing, ensuring that the appellant's sentence reflected contemporary standards and societal expectations. The court also addressed the calculation of the non-parole period, emphasising the need for consistency and fairness in sentencing for similar offences. Ultimately, the court concluded that while the sentencing regime at the time of the offences was different, the appellant's crimes warranted a sentence reflective of the gravity of the offences under current laws. The court determined that a partially accumulated sentence was appropriate, balancing the need for punishment, deterrence, and rehabilitation.

Orders