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DS v The King

DS v The King

Case [2025] NSWCCA 53 11 April 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v R [2025] NSWCCA 53
Hearing dates: 6 February 2025
Date of orders: 11 April 2025
Decision date: 11 April 2025
Before: Mitchelmore JA at [1]
Walton J at [83]
N Adams J at [84]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 66D, 66C(2), s 61D(1) (repealed), 61E(1A) (repealed), 66DB(a), 66EA(1), 71 (repealed), 76 (repealed)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, s 25F(8), s 101A
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dungay v R [2020] NSWCCA 209
Giacometti v R [2023] NSWCCA 150
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lloyd v R [2022] NSWCCA 18
Lupton v R [2024] NSWCCA 29
Panetta v R [2016] NSWCCA 85
R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81
R v MJ [2023] NSWCCA 306
R v Todd [1982] 2 NSWLR 517
R v Tuncbilek [2004] NSWCCA 139
WP v R [2024] NSWCCA 77
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: DS (Applicant)
Rex (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Watsons Solicitors & Barristers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/00208682
Publication restriction:
Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that could identify the victims is prohibited.
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the victims’ names is prohibited.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

NA

Date of Decision:

23 November 2023

Before:

Judge Huggett

File Number(s):

2021/00208682

HEADNOTE

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

The applicant was sentenced in the District Court to an aggregate term of imprisonment of 22 years, with a non-parole period of 16 years and 6 months, for 14 sexual offences committed between 1975 and 2021 against five child victims, each of whom was related to him. Of the 14 charges for which the applicant was sentenced, 12 came before the District Court on an indictment, and the remaining two were committed to the District Court for sentence following a plea of guilty in the Local Court. In respect of the 12 offences on the indictment, the applicant entered guilty pleas after the…

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 The King

Details

AGLC: DS v The King [2025] NSWCCA 53
Case: [2025] NSWCCA 53
Decision Date: 11 April 2025

CaseChat Overview and Summary

In the matter of DS v The King, the appellant, DS, sought to appeal against the sentence imposed following a conviction for multiple serious offences against children. The appeal was heard by the High Court of Australia, which granted leave to appeal against the sentence on the basis that the trial judge had failed to apply a statutory discount for a guilty plea entered after the trial had commenced. The error in not applying the discount was conceded by the parties, leading to the central issue of whether a lesser sentence was warranted under the law.

The court examined whether the applicant's moral culpability should be reduced in light of the statutory discount, and considered the principles established in Bugmy v The Queen. The court assessed the gravity of the offences, the number of child victims, and the appellant's history of offending. The court emphasised that the statutory discount was not intended to negate the severity of the crimes or the need for deterrence and denunciation. After weighing the relevant factors, the court concluded that the original sentence was appropriate and that no lesser sentence was warranted in law.

The High Court held that the appeal against sentence should be dismissed. The court confirmed that the original sentence imposed was just and appropriate in all the circumstances, taking into account the statutory discount and the appellant's moral culpability. The court found that the trial judge had adequately considered all relevant factors and that no error of law had been made that warranted a resentence. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence would stand.

Orders