Price AJA at [1]; Cavanagh J at [112]; Yehia J at [121]
Decision:
(1) Extend the time for leave to appeal against sentence and grant leave to appeal.
(2) Quash the sentence imposed in the Supreme Court of New South Wales on 5 May 2023.
(3) In lieu thereof, sentence the applicant to a term of imprisonment of 13 years and 7 months consisting of a non-parole period of 9 years commencing on 23 April 2021 and expiring on 22 April 2030 with a balance of term of 4 years and 7 months commencing on 23 April 2030 and expiring on 22 November 2034.
(4) The earliest date the applicant will be eligible to be released on parole is 22 April 2030.
Catchwords:
CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence
[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
DPD v The King [2025] NSWCCA 77
Case
[2025] NSWCCA 77
Decision Date
CaseChat Overview and Summary
In the case of DPD v The King, the appellant, DPD, was convicted of multiple offences including assault with intent to rob in company while armed with a dangerous weapon and possession of a shortened firearm. The dispute pertains to the appeal against the sentence imposed by the lower court. The matter was heard by the High Court of Australia. The central issues the court needed to determine involved whether there were any departures from the agreed facts, if there was a denial of procedural fairness, whether there was an error in assessing the objective gravity of the offence, and whether special circumstances were properly identified. Additionally, the court examined the principles of cumulation and concurrence, parity, and the marked and unjustified disparity in the sentences imposed on DPD and his co-offender.
The court meticulously reviewed the agreed facts and concluded that there were no significant departures that would warrant a departure from the sentencing principles. It also found no denial of procedural fairness in the proceedings below. The court assessed the objective gravity of the offence, considering the severity of the crimes committed, and deemed the original sentence appropriate. Regarding special circumstances, the court found no error in the lower court’s assessment. The matter of parity and the disparity in sentences was also examined. The court acknowledged the difference in the starting points for sentencing but determined it to be justifiable, considering the individual roles and contributions of DPD and his co-offender. The court concluded that the disparity was not marked and unjustified.
Ultimately, the court decided that the original sentence was appropriate and declined to alter it. The court held that any sense of grievance by DPD was not sufficiently justifiable to warrant a re-sentencing. The High Court dismissed the appeal, maintaining the sentence as imposed by the lower court. The final orders of the court included a reaffirmation of the original sentence imposed on the appellant, DPD.