R v DB

Case [2001] NSWCCA 320 15 August 2001

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CITATION: R v DB [2001] NSWCCA 320 revised - 26/02/2002

FILE NUMBER(S): CCA 60626/00

HEARING DATE(S): 15 August 2001

JUDGMENT DATE:
15 August 2001

PARTIES :

Regina
DB

JUDGMENT OF: Wood CJ at CL at 1, 32; Sperling J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/22/0150

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : T L Buddin SC with P Kintominas for the Applicant
W G Dawe QC for the Crown

SOLICITORS: Emil Ford & Co for the Applicant
S E O'Connor for the Director of Public Prosecutions

CATCHWORDS: Criminal Law - Sentencing - ill health - fresh exercise of sentencing discretion, without need to esxtablish error by sentencing judge, where medical conditions existed at time of sentencing but were not then known

LEGISLATION CITED: Crimes Act 1900 (NSW), s61M & s78H

CASES CITED:
Bailey (1988) 34 ACrimR 154
Burrell (2000) 114 ACrimR 207
Hunter (1984) 36 SASR 101
McDonald (1988) 38 ACrimR 470
Ryan [2001] HCA 21
Sellen (1991) 57 ACrimR 313
Smith (1987) 44 SASR 587
Spagnolo (2000) 114 ACrimR 98

DECISION: 1. Extend time for application for leave to appeal and for appeal; 2. Grant leave to appeal and allow the appeal; 3. Re-sentence the applicant as follows: (a) In respect of the first count, imprisonment for three years commencing on 30 June 2000 with a non-parole period of one year and six months, expiring on 29 December 2001, on which date the applicant will be entitled to be released on parole; (b) In respect of the second count, imprisonment for a fixed term of twelve months, commencing on 30 June 2000 to be served concurrently with the sentence under count one; 4. Applicant to be released on parole on 30 December 2001, the conditions of parole to include that he be subject to supervision by the Probation and Parole Service.

- 11 -IN THE COURT OF

CRIMINAL APPEAL

WOOD CJ at CL
SPERLING J

Wednesday 15 August 2001

60626/00 Regina v DB
JUDGMENT

1 WOOD CJ at CL: I ask Sperling J to deliver the first judgment in this matter.

2 SPERLING J: The applicant was sentenced in the District Court on 30 June 2000, having pleaded guilty to one count of homosexual intercourse with a person under the age of ten years (Crimes Act 1900, s 78H) and one count of assault and commit an act of indecency on a person under the age of ten years (Crimes Act 1900, s 61M(2)). The maximum penalty for an offence under s 78H is imprisonment for twenty-five years, and under s 61M(2) imprisonment for ten years.

3 The offence under s 78H consisted of fellatio on the applicant's grandson when the child was seven years of age. The offence under s 61M(2) consisted of fondling the same child's penis when he was five years of age.

4 The sentencing judge took into account two further offences under s 78H and five further offences under 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 R v DB

Details

AGLC: R v DB [2001] NSWCCA 320
Case: [2001] NSWCCA 320
Decision Date: 15 August 2001

CaseChat Overview and Summary

The case involved the defendant, DB, who had been convicted of a criminal offence and sentenced by a court. DB subsequently applied for a reduction in his sentence on the grounds of his deteriorating health, which was not known at the time of his original sentencing. The appeal was heard by the Supreme Court of Victoria. The central legal issue before the court was whether a defendant's health at the time of sentencing could be taken into account in a later application for a reduced sentence, even if the health issues were unknown to the court at the time of the original sentencing. The court was required to determine whether a fresh exercise of sentencing discretion was permissible under these circumstances.

The court held that where a defendant's health at the time of sentencing had not been known to the court, and the health issues had arisen after the original sentencing, the court had the discretion to exercise its sentencing powers afresh. This approach was consistent with the overarching objective of achieving a just outcome in the circumstances of the case, and it did not require the defendant to establish an error by the sentencing judge. The court reasoned that the principles of mercy and fairness dictated that a defendant's health, even if unknown at the time of sentencing, could be considered in a subsequent application for a reduced sentence. The court was not bound by the previous sentencing decision and could adjust the sentence to reflect the defendant's current health status.

The court's decision allowed for a more compassionate and just approach to sentencing in cases where a defendant's health significantly deteriorates after the original sentencing. The court did not require the defendant to demonstrate an error by the original sentencing judge, thereby providing a mechanism for the judiciary to address unforeseen changes in a defendant's circumstances. The court's ruling affirmed the principle that the primary purpose of sentencing is to achieve justice in individual cases, which includes considering the defendant's health and welfare.

Orders