Du Plessis v The King

Case [2024] NSWCCA 164


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Du Plessis v R [2024] NSWCCA 164
Hearing dates: 29 July 2024
Decision date: 06 September 2024
Before: N Adams J;
Ierace J;
Sweeney J
Decision:

(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)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A

Crimes (Sentencing Procedure) Amendment Act 2006 (NSW)

Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW)

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Rural Crime Legislation Amendment Act 2017 (NSW)

Cases Cited:

Ali v R [2010] NSWCCA 35

Archer v R [2017] NSWCCA 151

Christie v R [2012] NSWCCA 228

Conte v R [2018] NSWCCA 209

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

DL v R [2020] NSWCCA 164

Drew v The Queen (2016) 264 A Crim R 1; [2016] NSWCCA 310

He v Sun [2021] NSWCA 95

JM vThe Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297

Katsis v R [2018] NSWCCA 9

Longworth v The Queen (2017) 266 A Crim R 551; [2017] NSWCCA 119

Martin v R [2016] NSWCCA 273

Morrison v R [2022] NSWCCA 158

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Brown [2012] NSWCCA 199

R v Williams [2005] NSWCCA 99

Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Category:Principal judgment
Parties: George Du Plessis (Applicant)
Rex (Respondent)
Representation:

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

  1. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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