DR v R

Case [2022] NSWCCA 151 13 July 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DR v R [2022] NSWCCA 151
Hearing dates: 10 June 2022
Date of orders: 13 July 2022
Decision date: 13 July 2022
Before: Ward P at [1]
R A Hulme J at [2]
Bellew J at [6]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Where applicant sentenced to a term of imprisonment for serious sexual offending – Application of Bugmy principles – Where there was evidence of the applicant’s disadvantaged background – No evidence of any causal link between that background and the applicant’s offending – No error in the sentencing judge failing to find that the applicant’s moral culpability was reduced – Clear that the sentencing judge took into account the applicant’s disadvantaged background as part of the instinctive synthesis – Whether sentence was “crushing” – Whether the sentencing judge failed to correctly apply principles of totality – Whether sentence was manifestly excessive – Weight to be given to the offender’s subjective case – Observations as to the limitations placed on the use of so-called “comparable” cases – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Dungay v R [2020] NSWCCA 209
Edwards v R [2021] NSWCCA 57
GW v R [2018] NSWCCA 79
Hili v The Queen; Jonesv The Queen (2010) 242 CLR 520; [2010] HCA 45
JJ v R [2020] NSWCCA 165
Katsis v R [2018] NSWCCA 9
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MLP v R [2014] NSWCCA 183
Perkins v R [2018] NSWCCA 62
R v DR [2021] NSWDC 118
R v Gavel [2014] NSWCCA 56
R v Irwin [2019] NSWCCA 133
R v Scavera [2016] NSWCCA 145
RLS v R [2012] NSWCCA 236
Tuivagav R (2015) NSWCCA 145
ZA v R [2017] NSWCCA 132

Category: Principal judgment
Parties: DR – Applicant
Regina – Respondent
Representation:
Counsel:
R Mathur and K Fallah – Applicant
E Nicholson – Respondent
Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/316962
Publication restriction: No publication of anything which might identify the victims of the offending
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 118

Date of Decision:

12 April 2021

Before:

His Honour Judge Sutherland SC

File Number(s):

2018/316962

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to numerous counts of sexual offending and was sentenced to 20 years and 10 months imprisonment with a non-parole period of 15 years and 6 months imprisonment. Expert evidence tendered before the sentencing judge made extensive reference to the applicant’s…

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 DR v R

Details

AGLC: DR v R [2022] NSWCCA 151
Case: [2022] NSWCCA 151
Decision Date: 13 July 2022

CaseChat Overview and Summary

The appeal before the court was brought by a convicted offender, DR, against the sentence imposed by the sentencing judge. DR had been found guilty of serious sexual offences and was sentenced to a term of imprisonment. The appeal questioned the appropriateness of the sentence, contending that the judge had failed to adequately consider DR's disadvantaged background and that the sentence was excessively harsh. Additionally, DR argued that the sentencing judge did not correctly apply the principles of totality and that the sentence imposed was manifestly excessive.

The court considered several legal issues, primarily focusing on whether the sentencing judge erred in not finding that DR's moral culpability was reduced due to his disadvantaged background. The court also examined whether the sentence was "crushing" and if the judge failed to correctly apply the principles of totality. Furthermore, the court assessed the weight to be given to DR's subjective case and the limitations on using so-called "comparative" cases in determining the sentence. The court was tasked with deciding whether the sentence imposed was manifestly excessive and whether there was any error in the judge's consideration of DR's background.

In evaluating the appeal, the court found that the sentencing judge had indeed taken into account DR's disadvantaged background as part of the instinctive synthesis. However, there was no evidence to suggest that this background causally linked to DR's offending, thereby negating any reduction in moral culpability. The court held that the judge did not err in failing to find that DR's moral culpability was reduced and that there was no error in the application of the principles of totality. The sentence was not deemed "crushing" nor manifestly excessive, considering the gravity of the offences and the need for deterrence and denunciation. The court granted leave to appeal but ultimately dismissed the appeal, affirming the original sentence.

Orders