In relation to the application for leave to appeal by DS:
(1) The applicant be granted leave to appeal;
(2) The appeal be allowed;
(3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof:
(a) Sentence the appellant to an aggregate term of imprisonment of 14 years and 6 months commencing on 7 April 2017 and expiring on 6 October 2031;
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 10 years’ imprisonment expiring on 6 April 2027;
(c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 April 2027;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:
(i) 13 years and 6 months’ imprisonment for the offence of murder;
(ii) 3 years’ imprisonment for the offence of take and drive motor vehicle without consent of owner while owner present in vehicle in circumstances of aggravation contrary to s 154C(2) of the Crimes Act 1900;
(4) Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the appellant is to serve his sentence as a juvenile offender until he attains 21 years of age; and
(5) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, the appellant is advised of the existence of that Act and of its application to the offences he has committed.
In relation to the application for leave to appeal by DM:
(1) The applicant be granted leave to appeal;
(2) The appeal be allowed;
(3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof:
(a) Sentence the appellant to an aggregate term of imprisonment of 27 years commencing on 7 April 2017 and expiring on 6 April 2044;
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 20 years and 7 months’ imprisonment expiring on 6 November 2037;
(c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 November 2037;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:
(i) 20 years and 8 months’ imprisonment for the offence of murder;
(ii) 7 years and 2 months’ imprisonment for the offence of robbery…
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.
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Details
AGLC
DS v R; DM v R [2022] NSWCCA 156
Case
[2022] NSWCCA 156
Decision Date
CaseChat Overview and Summary
The case of DS v R; DM v R involved two juvenile offenders, DS and DM, who were convicted of serious offences including murder and robbery. The case was heard by the High Court of Australia, which granted leave to appeal against their sentences. The legal issues the court was required to decide included whether the sentencing judge erred in assessing the objective seriousness of the offences and the moral culpability of the offenders. The court also had to consider whether the sentences imposed were manifestly excessive and whether the sentencing judge had erred in considering the youth of the offenders.
The High Court found that the sentencing judge had erred in assessing the objective seriousness of DS’s offences, as they had addressed DS’s participation in DM’s offences rather than DS’s own offences. The court also found that the sentencing judge had failed to give effect to their finding of special circumstances, which should have reduced the moral culpability of the offenders. However, the court found no error in the sentencing judge’s consideration of the youth of the offenders or their description of the murder as involving “gratuitous violence” and being “cold blooded”. The court held that the sentences imposed were well in excess of the objective seriousness of each offence and that there was a need for parity between the sentences. The appeal was allowed, and the applicants were resentenced.
The final orders of the court were that the sentences imposed on DS and DM be quashed and that they be resentenced. The court also noted that in resentencing, the sentencing judge should take into account the special circumstances of the case, including the dysfunctional backgrounds and mental health issues of the offenders. The decision highlights the importance of considering the individual circumstances of each offender when imposing a sentence and the need for parity between co-offenders.