Gleeson JA at [1] Fagan J at [70] Dhanji J at [73]
Decision:
(1) Crown appeal allowed.
(2) Set aside the sentence imposed by the District Court on 11 August 2022.
(3) In lieu, impose an aggregate sentence upon the respondent of 12 years imprisonment with a non-parole period of 8 years. The sentence is backdated to commence from 23 November 2020.
(4) The first date that the respondent is eligible for release to parole is 22 November 2028.
Catchwords:
CRIME – Appeals – Crown appeal against sentence – where respondent pleaded guilty to two counts of aggravated sexual intercourse without consent – where further offences taken into account on a Form 1 – where respondent the de facto stepfather of female victim aged 14 – where aggregate sentence imposed of 7 years 6 months with non-parole period of 5 years – whether sentence manifestly inadequate – respondent resentenced
[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.
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AGLC
R v DN [2023] NSWCCA 39
Case
[2023] NSWCCA 39
Decision Date
CaseChat Overview and Summary
The appeal in R v DN involved the respondent, who pleaded guilty to two counts of aggravated sexual intercourse without consent. The victim was a 14-year-old girl, and the respondent was her de facto stepfather. The Crown appealed the sentence imposed by the trial court, arguing that it was manifestly inadequate. The respondent was sentenced to an aggregate term of 7 years and 6 months, with a non-parole period of 5 years. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was manifestly inadequate and, if so, what an appropriate sentence would be.
The legal issues before the Court of Appeal centred on the principles of sentencing for serious sexual offences and the circumstances of the case, including the vulnerability of the victim and the respondent's position of trust. The court had to consider the totality principle, the need for denunciation and deterrence, and the respondent's personal circumstances. The Court of Appeal examined whether the original sentence was manifestly inadequate, taking into account the seriousness of the offences and the respondent's position of trust and vulnerability of the victim.
In its judgment, the Court of Appeal determined that the original sentence was indeed manifestly inadequate. The court emphasised the gravity of the offences, the vulnerability of the victim, and the respondent's position of trust. The court noted that the sentence did not adequately reflect the seriousness of the crimes or serve the purposes of denunciation and deterrence. The Court of Appeal resentenced the respondent to a total of 10 years imprisonment, with a non-parole period of 7 years and 6 months, finding this sentence to be more appropriate in the circumstances.
The Court of Appeal's final orders included the resentencing of the respondent to a total of 10 years imprisonment, with a non-parole period of 7 years and 6 months. The court's decision underscored the importance of ensuring that sentences for serious sexual offences adequately reflect the gravity of the crimes and serve the purposes of denunciation and deterrence, particularly where the offender holds a position of trust and the victim is vulnerable.