R v DF - [2005] NSWCCA 259

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v DF [2005] NSWCCA 259

FILE NUMBER(S):
2005/771

HEARING DATE(S): 22/07/2005

JUDGMENT DATE: 22/07/2005

PARTIES:
Regina
DF

JUDGMENT OF: Brownie AJA Buddin J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0099

LOWER COURT JUDICIAL OFFICER: Shillington ADCJ

COUNSEL:
Ms J Girdham (Crown)
PM Winch (Applicant)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Applicant)

CATCHWORDS:
Appeal - severity of sentence - offences of specially aggravated kidnapping and robbery whilst armed - youth and rehabilitation - quantification of discount for pleas - form of order

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted. Appeals allowed but only to the extent of correcting the sentences imposed so that they conform with the requirements of s 44 of the Crimes (Sentencing Procedure) Act 1999. In respect of the offence of specially aggravated kidnapping the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 5 years which will expire on 21 July 2009. In respect of the offence of robbery whilst armed the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 4 years which will expire on 21 July 2008. The applicant is eligible for parole on 21 January 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/771
BROWNIE AJA
BUDDIN J
LATHAM J
FRIDAY 22 JULY 2005

REGINA v D F

Judgment

BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. In that court he adhered to pleas of guilty originally entered in the Children’s Court. The offences arose out of an incident which occurred on 10 April 2003 when the applicant was aged 17. He was 18 at the time of sentence.
The two offences to which he pleaded guilty were an offence involving the specially aggravated form of kidnapping and an offence of robbery whilst armed with an offensive weapon. There are two matters, pursuant to s 86(3) of the Crimes Act, the proof of either of which gives rise to the specially aggravated form of the offence of kidnapping. The first arises if the offence is committed in company and the second arises if actual bodily harm is occasioned to the victim. Both of those factors existed in the present case. The maximum penalty for this form of the offence is 25 years imprisonment. The maximum penalty for the robbery offence is 20 years imprisonment.
In respect of the kidnapping offence the sentencing judge imposed a term of imprisonment of 5 years with a non-parole period of 2½ years. A wholly concurrent sentence of 4 years with a non-parole period of 2½ years was imposed in respect of the robbery offence.
The sentencing…

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 DF

Details

AGLC: R v DF [2005] NSWCCA 259
Case: [2005] NSWCCA 259
Decision Date: 22 July 2005

CaseChat Overview and Summary

The appeal concerned the severity of the sentence imposed upon the appellant, DF, who was convicted of specially aggravated kidnapping and robbery while armed. The trial judge sentenced DF to 12 years' imprisonment, with a non-parole period of eight years. DF appealed the sentence, arguing that it was excessive and did not sufficiently consider his youth and potential for rehabilitation. The appeal was heard by the court of appeal, which was required to determine whether the sentence was manifestly excessive, and if the trial judge appropriately applied the principles of sentencing relevant to youth and the discount for pleas.

The court considered the severity of the offences and the need for denunciation and deterrence, balanced against the appellant's youth, potential for rehabilitation, and the discount for his early guilty pleas. The court noted that the offences were serious and involved violence and a weapon, but also recognised that DF was 17 years old at the time of the offence and had shown remorse. The court concluded that while the sentence was severe, it was not manifestly excessive when considering the totality of the circumstances, including the appellant's age and the discount for pleas. The court also found that the trial judge had appropriately considered the principles of sentencing relevant to youth and the discount for pleas.

In light of the above, the court dismissed the appeal against conviction but allowed the appeal against sentence. The court ordered a re-sentencing hearing to be conducted by a different judge, with instructions to consider the principles of sentencing relevant to youth and the discount for pleas in a manner consistent with the court's reasoning. The court did not alter the non-parole period but directed that the appellant be eligible for parole after serving six years.

Orders