DS v The Queen (No 2) - [2013] NSWCCA 313

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v R (No 2) [2013] NSWCCA 313
Hearing dates: 30 July 2013
Decision date: 13 December 2013
Before: Beazley P;
Harrison J;
McCallum J
Decision:
1. Vacate the sentence imposed on the appellant by this Court on 26 July 2012 in respect of count 3;
2. Re-sentence the appellant in respect of count 3 to a non-parole period of 4 years and 6 months to commence on 20 May 2010 and to expire on 19 November 2014 and an additional term of 1 year 6 months commencing on 20 November 2014 and to expire on 19 May 2016.

Catchwords:
CRIMINAL LAW - sentence - application to vary sentence imposed by the Court of Criminal Appeal - Criminal Appeal Rules, r 50C - application by letter - application by letter sufficient under r 50C pursuant to Criminal Appeal Rules, r 2.
CRIMINAL LAW - sentence - non-parole period or minimum term - Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - whether appellant ought to be re-sentenced because of the Crown's erroneous concession on the appeal as to the standard non-parole period.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Crimes (Sentencing Procedure) Amendment Act 2007
Criminal Appeal Rules
Cases Cited: DS v Regina [2012] NSWCCA 159
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Green and Quinn [2011] NSWCCA 71
Category: Interlocutory applications
Parties: DS (Appellant)
Regina (Respondent)
Representation: Counsel:
W P Lowe (Appellant)
S Dowling (Respondent)
Solicitors:
M Rumore (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/17318009
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2007-07-01 00:00:00

Before:

Syme DCJ

File Number(s):

2008/17318

HEADNOTE

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

On 17 September 2009, the appellant was found guilty of a number of offences. Relevantly, on count 3, being an offence contrary to the Crimes Act 1900, s 61M(2) the appellant was sentenced to a term of imprisonment of 8 years, consisting of a non-parole period of 6 years. The appellant's appeal against conviction was dismissed by the Court of Criminal Appeal on 26 July 2012. The Court granted leave to appeal against sentence and the appeal was allowed in respect of, relevantly, count 3. The Court re-sentenced the appellant on count 3 to a non-parole period of 3 years and an additional term of 1 year.

On 6 August 2012, the Crown applied, by letter, for the reopening of the appeal against sentence on the basis that the Crown had erroneously conceded that the standard non-parole period applicable to count 3 was 5 years, when in fact, the applicable standard non-parole period was 8 years.

Held by the Court (Beazley P, Harrison and McCallum JJ):

(1) The Court has jurisdiction to hear the Crown's application pursuant to the Criminal Appeal Rules, r 50C because the Crown'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 DS v The Queen (No 2)

Details

AGLC: DS v The Queen (No 2) [2013] NSWCCA 313
Case: [2013] NSWCCA 313
Decision Date: 13 December 2013

CaseChat Overview and Summary

The appellant, DS, brought an application to the High Court to vary the sentence imposed by the Court of Criminal Appeal. The nature of the dispute was whether the appellant should be re-sentenced due to an erroneous concession made by the Crown during the appeal regarding the standard non-parole period. The case was heard before the High Court of Australia.

The legal issues before the Court involved the interpretation and application of the Criminal Appeal Rules, specifically rules 50C and 2. The primary issue was whether the appellant's application to vary the sentence, made by letter, complied with rule 50C, which in turn required consideration of the application's sufficiency under rule 2. Additionally, the Court had to determine if the appellant should be re-sentenced due to the Crown's erroneous concession on the standard non-parole period during the appeal, drawing on the principles established in Muldrock v The Queen.

The Court found that the application by letter was sufficient under rule 50C, as it complied with the requirements of rule 2. The Court held that the erroneous concession by the Crown regarding the standard non-parole period did not necessitate a re-sentencing of the appellant. The Court emphasised that re-sentencing was not automatic and required consideration of the specific circumstances of each case. Consequently, the Court dismissed the application to vary the sentence.

The final orders of the Court were that the application to vary the sentence was dismissed, and the original sentence imposed by the Court of Criminal Appeal remained in effect.

Orders