DS v R - [2021] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: DS v R [2021] NSWCCA 52
Hearing dates: On the papers – 5 March 2021
Decision date: 26 March 2021
Before: Basten JA at [1];
Walton J at [53];
Button J at [54]
Decision:
(1)   Grant the applicant an extension of time within which to seek leave to appeal against his convictions and sentence, up to and including 28 July 2020.
(2)   Grant the applicant leave to appeal against his convictions, but dismiss the appeal.
(3)   Dismiss the application for leave to appeal against sentence.

Catchwords:
CRIME – appeals – leave to appeal against convictions – extension of time – delay caused by risk to safety of applicant while in custody
CRIME – child sex offences – sexual intercourse with child under 10 by digital penetration – sexual intercourse with child between 10 and 14 years – indecent assaults
CRIME – appeals – appeal against conviction – conviction on 14 charges, acquittal on 3 charges – whether verdicts inconsistent – whether dismissal of particular charges affected credibility of complainant – whether basis for jury to distinguish between reliability of evidence on different charges – whether verdicts unreasonable and unsupported on the evidence
CRIME – appeals – application for leave to appeal against sentence – applicant’s age and ill-health – conditions of imprisonment – whether taken into account by sentencing judge – seriousness of offending – multiple offences against step-daughter – victim aged between 8 and 13 years – whether aggregate sentence manifestly excessive

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 276
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 306I
Evidence Act 1995 (NSW), s 110

Cases Cited:
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category: Principal judgment
Parties: DS (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant unrepresented
M Kumar (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/243021
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2017

Before:

Hanley SC DCJ

File Number(s):

2015/243021

Judgment

BASTEN JA: The applicant stood trial in the District Court in June 2017 on a number of counts of sexual assault and indecent assault, in each of which the complainant was his stepdaughter, then aged between six and 13 years. He was convicted on 14 counts, (three being alternative offences), and acquitted of two. The jury were unable to agree in relation to one count for which there has not been a retrial.
On 12 December 2017 he was sentenced to an aggregate term of 11 years with a non-parole period of 6 years, commencing on 19 August 2015 when he was first taken into custody. The non-parole period is due to expire on 18 August 2021. An application for leave to appeal against both convictions and sentence was filed on 28 July 2020, some three years…

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 DS v R

Details

AGLC: DS v R [2021] NSWCCA 52
Case: [2021] NSWCCA 52
Decision Date: 26 March 2021

CaseChat Overview and Summary

The applicant, DS, sought leave to appeal against his convictions and sentences in the Supreme Court of Queensland. DS was found guilty of 14 charges related to sexual offences against his step-daughter, including digital penetration of a child under 10, sexual intercourse with a child between 10 and 14, and indecent assaults. He was acquitted of three other charges. DS also sought leave to appeal against the severity of his sentence. The appeal was delayed due to safety concerns while DS was in custody.
The central legal issues before the court were whether DS's convictions were inconsistent, if the dismissal of particular charges affected the credibility of the complainant, and whether the jury had a basis to distinguish between the reliability of the evidence on different charges. Additionally, the court considered whether the verdicts were unreasonable and unsupported by the evidence. Regarding the sentence, the court had to determine if the sentencing judge had adequately considered DS's age, ill-health, and conditions of imprisonment, and whether the aggregate sentence was manifestly excessive given the seriousness of the offences.

The court found that while the verdicts might appear inconsistent, there was a basis for the jury to distinguish between the reliability of evidence on different charges. The dismissal of some charges did not necessarily affect the credibility of the complainant or render the verdicts unreasonable. The court held that the jury was entitled to accept some parts of the complainant's evidence and reject others, resulting in a consistent and supported verdict. Regarding the sentence, the court noted that the sentencing judge had considered the relevant mitigating factors but determined that the seriousness of the offending warranted a lengthy sentence. The court concluded that the sentence was not manifestly excessive and dismissed the appeal against sentence.

The final orders of the court were that the application for leave to appeal against conviction was dismissed, and the application for leave to appeal against sentence was also dismissed. The convictions and sentences imposed by the Supreme Court of Queensland were upheld.

Orders