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R v Darwich

R v Darwich

Case [2018] NSWCCA 46 23 March 2018

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Darwich [2018] NSWCCA 46
Hearing dates: 16 February 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Before: Hoeben CJ at CL at [1]
White JA at [2]
N Adams J at [12]
Decision:
(1) The Crown appeal concerning Grounds 1 and 2 is allowed.

(2) The aggregate sentence imposed by Conlon SC DCJ on 19 October 2017 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with a non-parole period of three years commencing on 6 May 2017 and expiring on 5 May 2020 and a balance of term of two years to expire on 5 May 2022.
Catchwords: CRIMINAL LAW – Crown appeal against sentence - the respondent was convicted of five counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW) – he was sentenced to a head sentence of 3 years and 6 months with a non-parole period of 20 months – whether the sentencing judge erred in his assessment of objective seriousness - whether the sentence was manifestly inadequate
Legislation Cited: Crimes Act 1900 (NSW), ss 44, 66C, 66EB, 61J, 91C, 91D
Crimes (Child Prostitution) Amendment Act 1988 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Chamseddine v R [2017] NSWCCA 176
Clarke v R [2009] NSWCCA 49
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
Collier v R [2012] NSWCCA 213
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elyard v R (2006) 45 MCR 402; [2006] NSWCCA 43
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Glover v R [2016] NSWCCA 316
Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
JH v R [2017] NSWCCA 22
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mitten v R [2009] NSWCCA 103
Mulato v R [2006] NSWCCA 282
Pasoski v R [2014] NSWCCA 309
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v A [2003] NSWCCA 157
R v AEM [2002] NSWCCA 58
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v CTG [2017] NSWCCA 163
R v JF [2017] NSWCCA 217
R v Lane [2011] NSWSC 289
R v Little [2013] NSWCCA 288
R…

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 R v Darwich

Details

AGLC: R v Darwich [2018] NSWCCA 46
Case: [2018] NSWCCA 46
Decision Date: 23 March 2018

CaseChat Overview and Summary

In the case of R v Darwich, the appellant was convicted of five counts of participating as a client in an act of child prostitution, contravening section 91D(1)(b) of the Crimes Act 1900 (NSW). The Crown appealed the sentence imposed by the trial judge, asserting that it was manifestly inadequate. The respondent was sentenced to a head sentence of three years and six months imprisonment, with a non-parole period of 20 months. The appeal raised two key legal issues: whether the sentencing judge erred in his assessment of the objective seriousness of the offences, and whether the sentence was manifestly inadequate.

The court considered the principles of sentencing, particularly in relation to the objective seriousness of the crimes committed. It examined the nature of the offences, which involved the exploitation of children and the gravity of the harm caused to the victims. The court also assessed the mitigating factors presented by the respondent, such as his personal circumstances and the absence of prior criminal history. The appeal hinged on whether the trial judge's assessment of the objective seriousness was flawed, leading to an unduly lenient sentence. The Crown argued that the sentence did not adequately reflect the severity of the crimes.

Upon review, the court found that the sentencing judge had erred in his assessment of the objective seriousness of the offences. The court determined that the sentence imposed was indeed manifestly inadequate given the gravity of the crimes and the need for deterrence and denunciation. The appeal was allowed, and the case was remitted to the sentencing court for reconsideration of the sentence. The final orders will be made following the re-sentencing hearing.

Orders