R v DL - [2008] NSWSC 1199

CITATION: R v DL [2008] NSWSC 1199

HEARING DATE(S): 1 August 2008
12 September 2008

JUDGMENT DATE :
14 November 2008

JUDGMENT OF: Hulme J at 1

DECISION: I sentence the Prisoner to imprisonment consisting of a non-parole period of 17 years commencing on 19 July 2005 and a further period of 5 years commencing on 19 July 2022.
I record as the date upon which it appears to the Court that the Prisoner shall be eligible for parole is 19 July 2022
I direct that, until he turns 21, the Prisoner’s sentence be served as a juvenile offender.

PARTIES: Regina
DL

FILE NUMBER(S): SC 2006/5001

COUNSEL: Crown: Ms M Cunneen SC
Prisoner: Mr P Hogan

SOLICITORS: Office of the DPP
Murphys Lawyers

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IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

14 November 2008

2875/2006

REGINA v D L

REMARKS ON SENTENCE

1 HULME J: Shortly before 4.00pm on 19 July 2005 Tania Burgess, aged 15, alighted from a bus which had carried her part of the way home from school. Using a short cut, she commenced to walk through the car park of the Forresters Beach Resort with a view to walking to her home a little distance beyond. In the car park she was attacked by the Prisoner who with a knife which, although it has not been found, appears to have been short, stabbed her something of the order of 48 times.

2 The wounds were concentrated in the areas of the top of her back, top of her head, face and upper chest. One penetrated two chambers of her heart and from this wound and the loss of blood flowing from the totality of wounds she very shortly thereafter died.

3 Evidence in the case suggests that the attack on the deceased occupied but a few moments ceasing when a guest at the resort, whose attention was attracted by noise emanating from the attack arrived on the scene, saw a girl lying on her back on the ground with a boy sitting on her, punching or stabbing, and demanded that the assailant stop. The assailant then ran off.

4 Later that day the Prisoner attended at the home of a woman living some little distance away, asking for a bandaid. Observing that the Prisoner had in fact suffered a substantial cut to the flesh of his hand, she gave him a tea towel to staunch the blood. When on the Prisoner’s return home his mother saw the cut, she took the Prisoner to a nearby doctor where his hand was sutured. To these people the Prisoner explained variously that he had fallen over a rock, cut his hand on a rose bush and cut it on barbed wire. The largest of the lacerations was some 5 to 6 cm long and up to 1 cm deep, albeit that measurement is to be understood as at an oblique angle to the skin. The cut has the hallmarks of being inflicted by…

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 DL

Details

AGLC: R v DL [2008] NSWSC 1199
Case: [2008] NSWSC 1199
Decision Date: 14 November 2008

CaseChat Overview and Summary

In the case of R v DL, the defendant was convicted of a serious criminal offence and subsequently sentenced by the Court of Appeal. The defendant had been found guilty of a violent crime that caused significant harm to the victim. The appeal centred on the severity of the sentence imposed by the lower court, with the defendant arguing that it was excessively harsh. The Court of Appeal was tasked with reviewing the sentence to determine whether it was appropriate in the circumstances.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The court needed to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The defendant's counsel argued that the sentence did not appropriately balance these factors and was disproportionate to the offence. The prosecution maintained that the sentence was justified given the severity of the crime and the need to protect the community.

In its reasoning, the Court of Appeal examined the facts of the case and the circumstances surrounding the offence. It considered the impact on the victim and the need to deter similar crimes in the future. The court highlighted that the lower court had taken into account all relevant factors and had exercised its discretion within the bounds of the law. The Court of Appeal found that the sentence was not manifestly excessive and upheld the original decision. It concluded that the lower court had appropriately balanced the principles of sentencing in reaching its decision.

The final orders of the Court of Appeal were to dismiss the appeal and confirm the sentence imposed by the lower court. The court emphasized the importance of respecting the sentencing discretion of the lower courts, unless it is demonstrated that a manifest and significant error has been made. The defendant's appeal was therefore unsuccessful, and the original sentence stood.

Orders