R v DM

Case [2020] NSWDC 300 20 April 2020

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District Court

New South Wales

Medium Neutral Citation: R v DM [2020] NSWDC 300
Hearing dates: 15 April 2020
Date of orders: 20 April 2020
Decision date: 20 April 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Term of imprisonment of 6 years with a non-parole period of 3 years

Catchwords: CRIME — Violent offences — Robbery with wounding
SENTENCING — Juvenile offenders — Sentence of imprisonment
SENTENCING — Juvenile offenders — To be dealt with “according to law”
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Mitigating factors — Rehabilitation
SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
SENTENCING — Relevant factors on sentence — Circumstances of offence
SENTENCING — Relevant factors on sentence — Co-offenders
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence
SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Maximum penalty
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Relevant factors on sentence — Victim attitude to offender
SENTENCING — Sentencing procedure — Expert reports
SENTENCING — Sentencing procedure — Reasons for sentence
SENTENCING — Subjective considerations on sentence — Age of offender
SENTENCING — Subjective considerations on sentence — Intoxication
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Anti-Discrimination Act 1977
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Road Transport Act 2013
Cases Cited: Bugmy v The Queen [2013] HCA 37
Callaghan v R [2006] NSWCCA 58
Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194
KT v R [2008] NSWCCA 51
McCullough v R [2009] NSWCCA 94
Melvaine v R [2019] NSWCCA 274
R v Borkowski [2009] NSWCCA 102
R v Darrell Terry McNaughton [2006] NSWCCA 242
R v Fernando [1992] 76 A Crim R 58
R v Henry [1999] 46 NSWCLR 346
R v K [2000] NSWCCA 24
R v Olbrich [1999] HCA 54
R v Qutami [2001] NSWCCA 353
Tepania v R [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
DM (Offender)
Representation:
Samuel Amvrazis (Crown)
Rose Raymond (Offender)
Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (NSW/ACT) Limited (Offender)

File Number(s): 2018/00330504
Publication restriction: No publication of the Offender’s name or any information which might enable his identity to be ascertained due to his age at the time of the offence

REVISED Judgement

These are the sentence proceedings for the young person I shall refer to as DM.

INTRODUCTION

DM was, on 7 August 2018 at the time of the offences upon which sentence is to be imposed, a child born in 2002. This year he reached his 18th birthday and is thus now an adult but the proceedings are conducted in camera because of his status when he committed the offences. He is thus referred to by his initials.
For 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 DM

Details

AGLC: R v DM [2020] NSWDC 300
Case: [2020] NSWDC 300
Decision Date: 20 April 2020

CaseChat Overview and Summary

In the case of R v DM, the respondent was convicted of committing a robbery with wounding, a violent crime. The Supreme Court of [State] was tasked with determining an appropriate sentence for the juvenile offender. The court had to consider various legal issues, including the principles of sentencing juvenile offenders, the objective seriousness of the offence, the offender's age, the impact of intoxication, and the need for general and specific deterrence. Additionally, the court was required to determine the non-parole period and the ratio between the non-parole period and the balance of the term. The court also took into account mitigating factors such as the offender's plea of guilty, potential for rehabilitation, and expert reports.

The court found that the offender's age and potential for rehabilitation were significant mitigating factors, and the offender had shown remorse through a plea of guilty. The court also considered the objective seriousness of the offence, the impact on the victim, and the need for general and specific deterrence. The court determined that a sentence of imprisonment was necessary, but it had to balance the seriousness of the crime with the offender's age and potential for rehabilitation. After considering all relevant factors, the court decided on a term of imprisonment of six years, with a non-parole period of three years.

The court's reasoning focused on the need to balance the objective seriousness of the offence with the subjective considerations of the offender's age and potential for rehabilitation. The court acknowledged that a lengthy term of imprisonment might not be appropriate for a juvenile offender but found that a significant period of incarceration was necessary to achieve the aims of punishment, deterrence, and rehabilitation. The court set the non-parole period at half the total sentence, which is a common ratio in similar cases. The court also took into account the offender's intoxication at the time of the offence, which was not deemed to be a significant mitigating factor in this instance. The court provided detailed reasons for the sentence, ensuring transparency and adherence to legal principles.

The final orders of the court were that the respondent be sentenced to a term of imprisonment of six years, with a non-parole period of three years. The court considered this sentence to be appropriate, taking into account the offender's age, the objective seriousness of the offence, and the need for both general and specific deterrence. The court's decision reflects a balanced approach to sentencing juvenile offenders, considering both the seriousness of the crime and the potential for rehabilitation.

Orders

Orders of the court

Term of imprisonment of 6 years with a non-parole period of 3 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v DM [2020] NSWDC 300

Most Recent Citation

R v Al-Harazi (No 2) [2016] ACTSC 273

Cases citing this decision · 1 of 1 shown

R v Al-Harazi (No 2)
[2016] ACTSC 273 Para 1

…at, of course, a diagnosable mental illness is not a pre-condition to a finding of unfitness to plead. See Eastman v The Queen at 21; [59] and R v DM (2011) 253 FLR 349. It was reported also that his difficulties in adjustment to custody had appeared to have resolved.…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Melvaine v The Queen
[2019] NSWCCA 274 Para 149

…the significance of the record of previous convictions including personal violence offences. I accept the proposition in accordance with Melvaine v R [2019] NSWCCA 274 and what was said by Howie J in McCullough v R [2009] NSWCCA 94, at paragraph 30, that this offence should be seen to be one that involved unnecessar…
Tepania v The Queen
[2018] NSWCCA 247 Para 49

…ment is always a matter of judgement depending upon the facts and circumstances of the case at hand. Guidance is provided by Johnson J in Tepania v R [2018] NSWCCA 247. His Honour dealt with standard non-parole provision but continued at para 111:…
Bugmy v The Queen
[2013] HCA 37 Para 158

…isadvantage upon which the submission was developed for the application of decisions such as R v Fernando [1992] 76 A Crim R 58 and Bugmy v The Queen [2013] HCA 37. I am reminded of s 29A(5AA) Crimes (Sentencing Procedure) Act 1999 - self-induced intoxication is not brought to account as a mitigating factor, alt…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 167

…is burden while serving the custodial component of his sentence. I have had regard to the Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194 where in para 177 McClellan CJ at Common Law wrote of the significance of psychological and mental health issues.…
R v Robert Borkowski
[2009] NSWCCA 102 Para 14

…ilty in the Children’s Court to the robbery offence and therefore in accordance with Common Law including the judgement of Howie J in R v Borkowski [2009] NSWCCA 102, he is entitled to a discount of 25% for the utility of his plea of guilty to be applied to the sentence determined upon the synthesis of objective and…
McCullough v R
[2009] NSWCCA 94 Para 149

…personal violence offences. I accept the proposition in accordance with Melvaine v R [2019] NSWCCA 274 and what was said by Howie J in McCullough v R [2009] NSWCCA 94, at paragraph 30, that this offence should be seen to be one that involved unnecessary violence and cruelty. Whether it should be seen within the ter…
KT v R
[2008] NSWCCA 51 Para 156

…Paragraph 25, however, of the judgement of McClellan CJ at Common Law in KT v R [2008] NSWCCA 51 at [25] is noteworthy:…
R v McNaughton
[2006] NSWCCA 242 Para 63

…His antecedents and conditional liberty breached by further offending are to be brought to account in accordance with R v Darrell Terry McNaughton [2006] NSWCCA 242. These do not increase the sentence that would otherwise be proportionate to the offence or offences, nor do they increase the objective gravity of the…
Callaghan v R
[2006] NSWCCA 58 Para 18

…The determination of when to commence the imprisonment to be imposed in this case is not without its difficulty. Simpson J in Callaghan v R [2006] NSWCCA 58 wrote of the discretion to order the commencement of a sentence to a date before the expiration of the custodial component of the term of imprisonment to which…
R v Qutami
[2001] NSWCCA 353 Para 50

…eedings, DM did not give evidence to explain his life pattern or to explain his motive for the robbery. The caution advised by Smart AJ in R v Qutami [2001] NSWCCA 353 must be employed here.…
Regina v K
[2000] NSWCCA 24 Para 73

…I referred the parties to R v K [2000] NSWCCA 24 in the course of this discussion. It was perhaps an extreme case but demonstrated that regardless of the ferocity of the homicide there under consideration the challenging circumstances of childhood could ameliorate the punishment that might have otherwise been appro…
R v Olbrich
[1999] HCA 54 Para 159

…nalty falls upon the child upon the balance of probabilities and if the evidence is lacking he will have failed to establish those facts: R v Olbrich [1999] HCA 54.…

Legislation cited in this decision · 7

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 178)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 3)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 185)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 10)
Crimes Act 1900 (ACT)
1 mention (from Para 7)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 11)
Road Transport Act 2013 (NSW)
1 mention (from Para 13)

Medium Neutral Citation:	R v DM [2020] NSWDC 300
Hearing dates:	15 April 2020
Date of orders:	20 April 2020
Decision date:	20 April 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 6 years with a non-parole period of 3 years
Catchwords:	CRIME — Violent offences — Robbery with wounding SENTENCING — Juvenile offenders — Sentence of imprisonment SENTENCING — Juvenile offenders — To be dealt with “according to law” SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Mitigating factors — Rehabilitation SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Deterrence — General deterrence SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Victim attitude to offender SENTENCING — Sentencing procedure — Expert reports SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Age of offender SENTENCING — Subjective considerations on sentence — Intoxication SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Anti-Discrimination Act 1977 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport Act 2013
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194 KT v R [2008] NSWCCA 51 McCullough v R [2009] NSWCCA 94 Melvaine v R [2019] NSWCCA 274 R v Borkowski [2009] NSWCCA 102 R v Darrell Terry McNaughton [2006] NSWCCA 242 R v Fernando [1992] 76 A Crim R 58 R v Henry [1999] 46 NSWCLR 346 R v K [2000] NSWCCA 24 R v Olbrich [1999] HCA 54 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) DM (Offender)
Representation:	Samuel Amvrazis (Crown) Rose Raymond (Offender) Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Number(s):	2018/00330504
Publication restriction:	No publication of the Offender’s name or any information which might enable his identity to be ascertained due to his age at the time of the offence