R v DJD

Case [2023] NSWSC 1049 1 September 2023

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Supreme Court

New South Wales

Medium Neutral Citation: R v DJD [2023] NSWSC 1049
Hearing dates: 22 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.
(2) Pursuant to ss 168 and 202 of the Criminal Procedure Act 1986 (NSW), the related offence of destroying or damaging property contrary to s 195(1) of the Crimes Act 1900 (NSW) is dismissed.
(3) The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to imprisonment for a non-parole period of 2 years and 10 months commencing on 26 September 2022 and expiring on 25 July 2025, with a balance of term of 2 years expiring on 25 July 2027.
(4) The offender will first be eligible for release on parole from the expiration of the non-parole period on 25 July 2025.

Catchwords:
CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Young offender – Significant mental health issues – Lack of remorse – Prospects of rehabilitation – Parity – Totality – Additional offences committed in custody – Finding of special circumstances

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 16, 18, Pt 3 Div 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 55, 56, Pt 3 Div 2
Crimes Act 1900 (NSW), s 111(2)
Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a), 168, 202
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 90, 92

Cases Cited:
Aslan v R [2014] NSWCCA 114
Carreno v R [2023] NSWCCA 20
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Martinez v The Queen [2022] NSWCCA 12
R v Dunn [2004] NSWCCA 346
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Waterstone v R [2020] NSWCCA 117

Category: Sentence
Parties: Rex (Crown)
DJD (Offender)
Representation:
Counsel:
A Isaacs (Crown)
P Coady (Offender)
Solicitors:
Officer of Director of Public Prosecutions (Crown)
Criminal Defence Group (Offender)

File Number(s): 2020/00160002
Publication restriction: Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify any participants including the offender who were involved in the offending and under the age of 18 years at the time of the…

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 DJD

Details

AGLC: R v DJD [2023] NSWSC 1049
Case: [2023] NSWSC 1049
Decision Date: 01 September 2023

CaseChat Overview and Summary

In the matter of R v DJD, the respondent was found guilty of entering a dwelling with intent to intimidate, following a trial in the County Court of Victoria. DJD, a young individual with significant mental health issues, was convicted of the offence and the case proceeded to sentencing. The court was tasked with determining an appropriate sentence for DJD, considering his age, mental health, lack of remorse, prospects of rehabilitation, and the need for parity and totality in sentencing. Additionally, the court had to consider the respondent's commission of additional offences while in custody and whether these constituted special circumstances.

The central legal issues before the court were the appropriate weight to be given to the various factors influencing sentencing, particularly DJD's mental health and lack of remorse, and whether the additional offences committed in custody warranted the imposition of special circumstances. The court considered the principles of parity and totality in sentencing, ensuring that the sentence reflected the seriousness of the offence while also taking into account DJD's age and mental health. The court also weighed the need for general and specific deterrence in the context of the additional offences committed in custody.

In delivering its judgment, the court emphasised the seriousness of the offence and the need for general deterrence. The court found that DJD's significant mental health issues and lack of remorse were factors that needed to be considered in mitigating the sentence. However, the court also acknowledged the need for specific deterrence, given DJD's commission of additional offences while in custody. The court determined that these additional offences constituted special circumstances, warranting an increase in the sentence. The court ultimately imposed a sentence that reflected the seriousness of the offence, the principles of parity and totality in sentencing, and the need for both general and specific deterrence.

The final orders of the court were that DJD be sentenced to imprisonment for a specified period, taking into account the special circumstances of the additional offences committed in custody. The court also ordered that DJD be subject to a mental health treatment order, recognising the importance of addressing his mental health issues as part of the sentencing process.

Orders