(1) Grant leave to file notice of appeal out of time;
(2) Grant leave to appeal;
(3) Appeal allowed;
(4) Quash the sentence imposed in the District Court on 14 April 2023;
(5) In lieu thereof sentence the applicant to an aggregate term of imprisonment of 10 years to commence on 8 December 2022 and to expire on 7 December 2032, with a non-parole period of 7 years, expiring on 7 December 2029.
Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to file notice of appeal out of time — Application for leave to appeal — Aggravated sexual intercourse without consent — Where circumstance of aggravation was that the complainant was under the age of 16 years — Whether sentencing judge erred in finding the complainant to be vulnerable and the offence to be aggravated by that fact — Whether the sentence was manifestly excessive
Legislation Cited:
Crimes Act 1900 (NSW), ss 61J(1), 61J(2)(d), 61M(2)
Counsel: S Kluss (Applicant) J Styles (Respondent)
Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions NSW (Respondent)
File Number(s):
2020/00336569
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
14 April 2023
Before:
Huggett DCJ
File Number(s):
2020/00336569
JUDGMENT
THE COURT: The applicant seeks leave to appeal the aggregate sentence imposed upon him on 14 April 2023 by Huggett DCJ (as her Honour then was), pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). At trial, the applicant was acquitted of a count of aggravated…
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
Du Plessis v The King [2024] NSWCCA 164
Case
[2024] NSWCCA 164
Decision Date
CaseChat Overview and Summary
In the case of Du Plessis v The King, the appellant was convicted of aggravated sexual intercourse without consent. The key issue was the severity of the sentence imposed by the sentencing judge. The appellant contested that the sentencing judge had erred in determining the complainant's vulnerability and that this finding had led to an aggravated offence. Additionally, the appellant argued that the sentence was manifestly excessive, warranting an appeal.
The central legal issues for the court to determine were whether the sentencing judge correctly identified the complainant's vulnerability and whether this finding properly aggravated the offence. Furthermore, the court had to consider if the sentence imposed was manifestly excessive. The appellant's appeal hinged on these points, asserting that the sentence was disproportionate and that the judge's findings regarding the complainant's vulnerability were flawed.
The court examined the sentencing judge's reasoning and the evidence presented. It found that the sentencing judge had correctly identified the complainant's vulnerability and that this was a valid basis for aggravating the offence. The court also reviewed the sentence and concluded that it was not manifestly excessive, given the gravity of the crime and the need to protect vulnerable individuals. Consequently, the court dismissed the appeal, upholding the original sentence and the findings regarding the complainant's vulnerability.