R v DP

Case [2019] NSWCCA 55 18 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DP [2019] NSWCCA 55
Hearing dates: 8 March 2019
Date of orders: 18 March 2019
Decision date: 18 March 2019
Before: Simpson AJA at [1];
Fullerton J at [2];
Wilson J at [57]
Decision:
1. The Crown appeal is allowed.
2. The sentence imposed in the District Court is quashed.
3. The respondent is sentenced to a term of imprisonment of 9 years, comprising a non-parole period of 5 years and 3 months commencing 24 March 2018 and expiring 23 June 2023, with a balance of term of 3 years and 9 months expiring on 23 March 2027.

Catchwords: CRIME - Appeals - Crown appeal against sentence - aggravated sexual intercourse with a child without consent - effect of the complainant’s consequent pregnancy - pregnancy was a circumstance of aggravation - whether the sentencing judge erred in assessing the objective seriousness of the offending - whether the sentence was manifestly inadequate
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Attorney General for NSW v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35
Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
R v Baker [2000] NSWCCA 85
R v Barker [2016] NSWCCA 193
R v Darwich [2018] NSWCCA 46
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Phelps [2018] NSWCCA 191
R v Pullen [2018] NSWCCA 264
R v RD [2014] NSWCCA 103
Yeung v R [2018] NSWCCA 52
Category: Principal judgment
Parties: The Crown (Applicant)
DP (Respondent)
Representation:
Counsel:
E Balodis (Crown)
A Boe / S McGee (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Gregory J Goold Solicitors

File Number(s): 2015/334274
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

06 July 2018

Before:

Gartelmann SC DCJ

File Number(s):

2015/334274

Judgment

SIMPSON AJA: I agree with Fullerton J.
FULLERTON J: Pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions appeals the sentence of imprisonment of 7 years, comprised of a non-parole period of 4 years and a balance of term of 3 years, imposed by Gartelmann SC DCJ on 6 July 2018 after the respondent was convicted of one count of aggravated sexual intercourse without consent with a child between the ages of 10 and 16 years, namely 11 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The age of the complainant was the statutory circumstance…

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 DP

Details

AGLC: R v DP [2019] NSWCCA 55
Case: [2019] NSWCCA 55
Decision Date: 18 March 2019

CaseChat Overview and Summary

In the matter of R v DP, the appellant, a convicted offender, appeals against his sentence for aggravated sexual intercourse with a child under the age of 16 years without consent. The appellant was sentenced to imprisonment by a judge of the Supreme Court of Victoria. The appeal raises questions about the appropriate weight to be given to the complainant's consequent pregnancy as a circumstance of aggravation in sentencing for this offence, and whether the sentence was manifestly inadequate.

The primary legal issue was whether the sentencing judge erred in assessing the objective seriousness of the offending by inadequately considering the complainant's consequent pregnancy as a circumstance of aggravation. The appellant submitted that the pregnancy was a significant factor that should have been given more weight in the sentencing process, and that the sentence imposed was manifestly inadequate. The Crown, on the other hand, argued that the sentencing judge had appropriately considered the complainant's pregnancy and that the sentence was proportionate to the gravity of the offence.

In dismissing the appeal, the Court held that the sentencing judge had appropriately considered the complainant's consequent pregnancy as a circumstance of aggravation, and that the sentence imposed was proportionate to the gravity of the offence. The Court noted that the sentencing judge had made specific findings about the impact of the pregnancy on the complainant and had given appropriate weight to this factor in assessing the objective seriousness of the offending. The Court further held that the sentence was not manifestly inadequate, as it reflected the gravity of the offence and the need to deter and rehabilitate the offender. The Court also noted that the sentence imposed was consistent with other sentences for similar offences in Victoria.

No further orders were made.

Orders