R v DBN

Case [2005] NSWCCA 435 14 December 2005

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CITATION:
R v DBN [2005] NSWCCA 435

HEARING DATE(S): 28 September 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Hislop J at 8; Rothman J at 9

DECISION:
(a) Leave to appeal against sentence be granted;; (b) Appeal against sentence be dismissed.

CATCHWORDS:
Criminal Law - appeal against sentence - use of aggravating factors under s.21A Crimes (Sentencing Procedure) Act - Special circumstances - different sentence is not warranted

LEGISLATION CITED:

Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act

CASES CITED:
R v Hathaway [2005] NSWCCA 368
Veen v The Queen (No 2) (1988) 165 CLR 465
R v Simpson (2001) 53 NSWLR 704
R v Johnson [2004] NSWCCA 765
R v Swan [2005] NSWCCA 252
R v LWP [2003] NSWCCA 215

PARTIES:
DBN
The Queen

FILE NUMBER(S):
CCA 2005/1610

COUNSEL:
Mr G Gowling
Mr H Dhanji

SOLICITORS:
S O'Connor - Legal Aid Commission for Appellant
S Kavanagh - Crown

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/1215 and 4/21/3010

LOWER COURT JUDICIAL OFFICER:
Andrews ADCJ

- 1 -

2005/1610

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

14 December 2005

REGINA v DBN

Judgment

1 McCLELLAN CJ at CL: I generally agree with the reasons of Rothman J which I have had the advantage of reading in draft.

2 His Honour refers to the difficulties which s.21A has provoked on a number of occasions when sentences are being imposed. Although the section has proved useful in many cases it is important that the sentencing judge carefully identify the elements of the offence so that they are not also considered as an aggravating factor contrary to s 21A(2).

3 With respect to the relevance of prior convictions I identified in R v Hathaway [2005] NSWCCA 368 that the recent and consistent approach of this Court was that they could be relevant only to subjective matters. However, the matter may not be without controversy and may require further consideration in an appropriate case (see [2] and [30]-[34] in Hathaway). It may be necessary to consider the correct understanding of the joint judgment in Veen v The Queen (No 2) (1988) 165 CLR 465 at 477.

4 In the present matter Andrew ADCJ twice refers to the fact that the applicant “had previous convictions”. Although not entirely clear it is tolerably plain that his Honour had in mind that the applicant’s record was an aggravating feature of the relevant offences. The present state of the authorities would suggest that, if his Honour, adopted this view he was in error. However, as I pointed out in Hathaway even if, in this respect, his Honour erred it is necessary to give careful consideration to whether this has lead to a sentence being imposed which would cause this Court to intervene.

5 As the Chief Justice pointed out in R v Simpson (2001) 53 NSWLR 704 s 6(3) of the Criminal Appeal Act 1912 imposes the obligation on this Court, if error…

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 DBN

Details

AGLC: R v DBN [2005] NSWCCA 435
Case: [2005] NSWCCA 435
Decision Date: 14 December 2005

CaseChat Overview and Summary

In the matter of R v DBN, the appellant, DBN, was convicted and sentenced for various criminal offences and brought an appeal against the severity of the sentence imposed. The case was heard by the NSW Court of Criminal Appeal. The appeal focused on whether the trial judge correctly applied the aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act in determining the sentence. The appellant argued that the court failed to properly consider the special circumstances of the case and that a lesser sentence was warranted.

The court was required to decide whether the trial judge's application of section 21A was legally sound and whether the sentence was proportionate to the nature and circumstances of the offences. The appeal hinged on the interpretation and application of the relevant statutory provisions and the principles governing sentencing in similar cases. The court had to consider the weight given to aggravating factors, the presence of special circumstances, and whether these justified a different sentence.

In examining the appeal, the court found that the trial judge had correctly applied the provisions of section 21A. The court noted that the judge had carefully considered the evidence and the circumstances surrounding the offences. The court determined that the sentence was proportionate to the seriousness of the crimes committed and that the appellant had not demonstrated that a different sentence was warranted. The court was satisfied that the trial judge had exercised their discretion appropriately and that the appeal should be dismissed.

As a result of the appeal being dismissed, the original sentence imposed by the trial judge was upheld. The court did not order any modification to the sentence, confirming that the sentence was just and appropriate in light of the offences and the aggravating factors considered.

Orders