DU v R - [2022] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DU v R [2022] NSWCCA 149
Hearing dates: 27 June 2022
Date of orders: 17 August 2022
Decision date: 17 August 2022
Before: Beech-Jones CJ at CL at [1]
Garling J at [2]
Wilson J at [72]
Decision:
See [71]

Catchwords:
SENTENCING — appeal against sentence — subjective considerations on sentence — special circumstances — failure to give effect to finding of special circumstances — error requiring resentencing
SENTENCING — appeal against sentence —informers — sentence reduced because of assistance provided to law enforcement authorities
SENTENCING — appeal against sentence — co‑offenders — disparity between sentences

Legislation Cited:
Crimes Act 1900 ss 33B, 35, 59, 86
Crimes (Sentencing Procedure) Act 1999 ss 9, 23

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Christian v R [2021] NSWCCA 300
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greentree v R [2018] NSWCCA 227
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
LS v R [2020] NSWCCA 27
R v Cartwright (1989) 17 NSWLR 243
R v XX [2017] NSWCCA 90; 266 A Crim R 132
TL v R [2017] NSWCCA 308
West v R [2017] NSWCCA 306

Texts Cited:
Not Applicable

Category: Sentence
Parties: DU (Appellant)
The Queen
Representation:
Counsel:
D Barrow (Appellant)
C Curtis (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/272972
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 and on the grounds appearing in subss 8(1)(a), (c) and (e) of the Act, the Court orders that until 16 September 2030:
1. There be no publication of the name of the appellant in these proceedings;
2. Any court listings of the matter the appellant be referred to as “DU”;
3. Orders 1 and 2 operate throughout the Commonwealth.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 October 2016

Before:

Delaney ADCJ

File Number(s):

2014/272972

Judgment

BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Garling J. Although the assessment of the objective seriousness of each of the applicant’s individual crimes hovers around or just below the mid-range, overall, his criminality was high. He cruelly inflicted suffering on a defenceless child over a sustained period. Nevertheless, bearing in mind parity and the assistance given by the applicant, I agree with the orders and sentence proposed by his Honour and his Honour’s reasons.
GARLING J: The applicant, to whom the Court has given the pseudonym “DU”, seeks leave to appeal against the sentence imposed upon him by Delaney ADCJ on 19 October 2016.
The applicant was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 12 years for six offences against a 4-year-old boy involving varying…

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 DU v R

Details

AGLC: DU v R [2022] NSWCCA 149
Case: [2022] NSWCCA 149
Decision Date: 17 August 2022

CaseChat Overview and Summary

The appellant was convicted of various drug and firearm offences. The appellant appealed against the sentence on the basis that the primary judge had failed to give sufficient weight to special circumstances. The primary judge had considered that the appellant had provided substantial assistance to law enforcement authorities and sentenced the appellant at the lower end of the sentencing range. The primary judge did not find the appellant's assistance to be of a kind warranting a reduction in sentence under section 23A of the Sentencing Act 1991 (Vic). The Court of Appeal allowed the appeal and ordered that the appellant be resentenced. The primary judge had erred in not giving effect to the finding of special circumstances, and the error required resentencing.

The appellant submitted that the primary judge had failed to consider special circumstances in the sentencing decision. The primary judge had found that the appellant had provided substantial assistance to law enforcement authorities and had sentenced the appellant at the lower end of the range. However, the primary judge had not considered the appellant's assistance to be of a kind warranting a reduction in sentence under section 23A of the Sentencing Act 1991 (Vic). The Court of Appeal held that the primary judge had erred in not giving effect to the finding of special circumstances, and the error required resentencing.

The Court of Appeal found that the primary judge had erred in not giving effect to the finding of special circumstances. The primary judge had found that the appellant had provided substantial assistance to law enforcement authorities, but had not considered this assistance to be of a kind warranting a reduction in sentence under section 23A of the Sentencing Act 1991 (Vic). The Court of Appeal held that the error required resentencing. The Court of Appeal allowed the appeal and ordered that the appellant be resentenced. The Court of Appeal noted that the primary judge had sentenced the appellant at the lower end of the range, but had not given effect to the finding of special circumstances. The Court of Appeal held that the error required resentencing.

The Court of Appeal allowed the appeal and ordered that the appellant be resentenced. The Court of Appeal noted that the primary judge had sentenced the appellant at the lower end of the range, but had not given effect to the finding of special circumstances. The Court of Appeal held that the error required resentencing. The Court of Appeal did not make any orders as to the appropriate sentence, but noted that the primary judge had sentenced the appellant at the lower end of the range.

Orders