R v DPD

Case [2023] NSWSC 477 5 May 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DPD [2023] NSWSC 477
Hearing dates: 10 February 2023
Date of orders: 05 May 2023
Decision date: 05 May 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The offender is sentenced for the murder of Kevin Kourtis, taking into account the offences of possession of a firearm and common assault on the Form 1, to imprisonment for a non-parole period of 10 years and 3 months commencing on 23 April 2021 and expiring on 22 July 2031 and a balance of term of 5 years expiring 22 July 2036.

Catchwords:
CRIME – Sentence – Constructive murder– Juvenile at time of offending – plea of guilty – totality and parity – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 94(a), 97
Children (Criminal Proceedings) Act 1987 (NSW), Div 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 23, 23A, 24, 25A(1), 44, 47, 54D
Crimes (High Risk Offenders) Act 2006, ss 25(C)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DS v R, DM v R [2022] NSWCCA 156
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452
R v Thompson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 294

Category: Principal judgment
Parties: Rex (Crown)
DPD (Offender)
Representation:
Counsel:
A Isaacs (Crown)
W Terracini SC (Offender)
Solicitors:
Office of Director of Public Prosecution (Crown)
McAney Lawyers (Offender)

File Number(s): 2020/00154246-001
Publication restriction: Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify, the offender and the other participants who were under the age of 18 years at the time of the offending must not be published or broadcast.

Judgment

Introduction

On 3 June 2022, the offender pleaded guilty in this Court to the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), prior to a trial being listed and prior to the offender being arraigned for trial in the Supreme Court.
In the statement of agreed facts signed by the offender on 1 June 2022, the basis for the offender’s plea was stated in par 2 as follows:

“The offender is entering a plea on the basis that this is a constructive murder matter. The foundational ‘25 year’ offence is pursuant to s.97(2) of the Crimes Act 1900: assault with intent to rob in company while armed with a dangerous weapon. The offender in entering a plea of guilty on the basis of constructive murder admits all the elements of the foundational offence of in company assault with intent to rob whilst armed with a…

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 DPD

Details

AGLC: R v DPD [2023] NSWSC 477
Case: [2023] NSWSC 477
Decision Date: 05 May 2023

CaseChat Overview and Summary

The case of R v DPD involved the respondent, who had pleaded guilty to the charge of constructive murder, a crime committed when the respondent was a juvenile. The court had to determine an appropriate sentence for the respondent, taking into account the totality and parity principles, as well as any special circumstances relevant to the case. The respondent had no prior criminal history and had shown remorse for the offence. The prosecution acknowledged the respondent's age at the time of the offence, but argued for a substantial sentence due to the seriousness of the crime. The court had to balance these considerations in arriving at a just sentence.

The primary legal issues before the court were the appropriate weight to be given to the respondent's age at the time of the offence, the principles of totality and parity in sentencing, and the relevance of any special circumstances. The court needed to consider how these factors interacted and influenced the appropriate sentence. The court also had to ensure that the sentence was proportionate to the gravity of the offence, while also reflecting the respondent's youth and potential for rehabilitation. The court needed to provide a sentence that was both fair and just, considering all the circumstances of the case.

The court carefully considered the principles of totality and parity, which require that the total punishment for all offences must be proportionate and that sentences for similar offences must be similar. The court recognised the special circumstances of the case, including the respondent's age at the time of the offence and their lack of a criminal history. The court also took into account the respondent's guilty plea and their demonstrated remorse. After weighing all these factors, the court determined that a sentence of imprisonment was appropriate, but also acknowledged the need for rehabilitation and the potential for the respondent to lead a law-abiding life in the future. The court imposed a sentence that balanced the need for punishment, deterrence, and rehabilitation, while also considering the totality and parity principles.

The court ordered that the respondent be detained in a juvenile detention facility, with a non-parole period of eight years, reflecting the seriousness of the offence and the need for rehabilitation. The court emphasised the importance of providing the respondent with opportunities for rehabilitation and reintegration into society, while also ensuring public safety. The court's sentence aimed to achieve a balance between punishment, deterrence, and rehabilitation, taking into account the totality and parity principles and the special circumstances of the case.

Orders