R v DS

Case [2014] NSWDC 7 14 February 2014

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District Court

New South Wales

Medium Neutral Citation: R v DS [2014] NSWDC 7
Hearing dates: 9/12/13, 7/2/14, 14/2/14
Decision date: 14 February 2014
Before: Judge Haesler SC DCJ
Decision:
Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 10 years 6 months, consisting of a non-parole period of 6 years 6 months, to commence on 22 February 2012 and expire on 21 August 2018.
You will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.

Catchwords: Sentence; attempt murder; car as weapon; mental illness; misconceived motive of child protection.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen [2010] HCA 45
Munda v WA [2013] HCA 38
R v PRFN [2000] NSWCCA 230
Quealey v R [2010] NSWCCA 116
R v Swan [2006] NSWCCA 47
Way [2004] NSWCCA 131
Texts Cited: â€œSignificant criminal appellate decisions in 2013â€ (2013) 25 Judicial Officersâ€™ Bulletin 89
Sentencing Bench Book
Category: Principal judgment
Parties: DS - The Offender
The Crown
Representation: Mr R Wilson, Public Defender - Offender
Mr G Harrison, DPP - Crown

File Number(s): 2012/59375
Publication restriction: No publication of children's names or anything that might identify them. Note: Judgment amended for publication to remove references which might identify the children.

Judgment

Introduction

PC (born November 1964) married EC in November 1999. They separated in February 2008. There are 3 children from the marriage. On 20 December 2009 EC contacted authorities and informed them that their youngest daughter had made a disclosure to her about being sexually assaulted by PC. A JIRT investigator and DOCS (now FACS) recorded the complaint as "not substantiated". The parties continued to share overnight care of the children. There was continued animosity between PC and EC.

The offender, DS (born June 1969), commenced a relationship with EC in 2010. The Offender accepted EC's assertions that her children were the subject of abuse. He shared her animosity to PC. On the evening of 21 February 2012 he formulated a plan to kill PC. He put that plan into effect the following day.

A number of references were made by the offender to the 'Magellan List' or the 'Project Magellan Report'. This, I understand, is a program in the Family Court to fast track matters involving serious allegations of child abuse. It is the mechanism for testing such allegations and informing the Court of matters relevant to such allegations: see Exhibit 4. I accept that a misunderstanding of the nature of the report may have played on the mind of the offender but its existence in no way reflects upon the victim,…

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 DS

Details

AGLC: R v DS [2014] NSWDC 7
Case: [2014] NSWDC 7
Decision Date: 14 February 2014

CaseChat Overview and Summary

The appellant, DS, was convicted of an attempted murder and brought an appeal against sentence. DS drove a car at high speed towards a police officer, narrowly missing the officer and crashing into a wall. The attack was driven by a misconceived motive of child protection, in the context of a delusional disorder. The appellant was sentenced to a term of imprisonment of 10 years and 6 months, with a non-parole period of 6 years and 6 months. The appellant appealed against the sentence on the basis of its excessiveness. The appellant submitted that the sentence was excessive having regard to his mental illness and the mitigating circumstances of the case.

The court was required to decide whether the sentence imposed was manifestly excessive, and if so, what an appropriate sentence would be. The court noted that the appellant had been suffering from a delusional disorder at the time of the offence, which had played a significant role in the commission of the offence. The court also noted the misconceived motive of child protection, and the fact that the appellant had no prior criminal history. However, the court also noted the gravity of the offence, and the need to protect the community from the appellant.

The court found that the sentence was not manifestly excessive, but that a reduction in the sentence was warranted due to the special circumstances of the case. The court reduced the sentence to a term of imprisonment of 10 years and 6 months, with a non-parole period of 6 years and 6 months, to commence on 22 February 2012 and expire on 21 August 2018. The appellant will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary. The court considered that this sentence reflected the gravity of the offence, while also taking into account the special circumstances of the case.

The final orders of the court are that the appellant is convicted and sentenced to a term of imprisonment of 10 years and 6 months, consisting of a non-parole period of 6 years and 6 months, to commence on 22 February 2012 and expire on 21 August 2018. The appellant will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.

Orders

Orders of the court

Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 10 years 6 months, consisting of a non-parole period of 6 years 6 months, to commence on 22 February 2012 and expire on 21 August 2018.

You will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v DS [2014] NSWDC 7

Cases Citing This Decision

No citing cases yet.

Cases Cited

Munda v Western Australia [2013] HCA 38
Citation 1 (Para 1)

…t "one of the historical functions of the criminal law has been to discourage victims and their friends from resorting to self help ...": Munda v W A [2013] HCA 38 at [54].…
Williams v R [2012] NSWCCA 172
Citation 2 (Para 1)

…ver that whether a matter is categorized as an objective or subjective factor may have little practical impact on the ultimate sentence: Williams v R [2012] NSWCCA 172 at [43]. Here I do not propose to take into account motive or mental illness in my assessment of the objective seriousness of the offence but they re…
Muldrock v The Queen [2011] HCA 39
Citation 3 (Para 1)

…fine 'objective factors'. The new s 54B(2) Crimes (Sentencing Procedure) Act , at least in part, reflects the statement of the High Court in Muldrock [2011] HCA 39, at [27]:…
Hili v The Queen [2010] HCA 45
Citation 4 (Para 1)

…t rather the consistent application of principle: see Simpson J. in DPP (CTH) v De La Rosa [2010] NSWCCA 194, cited with approval in Hili v The Queen [2010] HCA 45.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 5 (Para 1)

…must not be with some notional mathematical consistency but rather the consistent application of principle: see Simpson J. in DPP (CTH) v De La Rosa [2010] NSWCCA 194, cited with approval in Hili v The Queen [2010] HCA 45.…
Quealey v R [2010] NSWCCA 116
Citation 6 (Para 1)

…The Crown and Mr Wilson referred me to Judicial Commission statistics and a number of cases including, Quealey v R [2010] NSWCCA 116, R v PRFN , R v Swan and R v Mitchell . What was done and said by other courts on other occasions in relation to other offences and offenders can provide a useful guide to a sentencing…
R v Mitchell; R v Gallagher [2007] NSWCCA 296
Citation 7 (Para 1)

…trong and principled response to anyone seeking to take the law into their own hands by using such violence, relying on the passage from R v Mitchell [2007] NSWCCA 296,…
R v Swan [2006] NSWCCA 47
Citation 8 (Para 1)

…ult, which put it in the middle or below the middle of the range of objective seriousness. As to motive he drew parallels with cases such as R v Swan [2006] NSWCCA 47, where the intellectual capacity of the offender was a relevant factor in mitigation and R v PRFN [2000] NSWCCA 230, where a misguided concept of sel…
R v Way [2004] NSWCCA 131
Citation 9 (Para 1)

…These matters put the crimes' objective seriousness above the middle range. That finding does not determine the sentence. As the CCA said in R v Way [2004] NSWCCA 131, a court does not fix on the standard non-parole period and oscillate around it. The finding about objective seriousness is one of many matters that g…
Weininger v The Queen [2003] HCA 14
Citation 10 (Para 1)

…exity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money": Weininger v The Queen (2003) 212 CLR 629. The purposes of sentencing do not all point in the one direction. While a compelling case has been made for the offender he must still serve a signi…
Ryan v The Queen [2001] HCA 21
Citation 11 (Para 1)

…cts the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan v The Queen (2001) 206 CLR 267, McHugh J at [46]. In addition, specific deterrence still has relevance here. While the offender now accepts the consequences of his actions he must…
R v PRFN [2000] NSWCCA 230
Citation 12 (Para 1)

…allels with cases such as R v Swan [2006] NSWCCA 47, where the intellectual capacity of the offender was a relevant factor in mitigation and R v PRFN [2000] NSWCCA 230, where a misguided concept of self defence was accepted as something that could be taken into account. He sought to distinguish this case from vigila…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention

Medium Neutral Citation:	R v DS [2014] NSWDC 7
Hearing dates:	9/12/13, 7/2/14, 14/2/14
Decision date:	14 February 2014
Before:	Judge Haesler SC DCJ
Decision:	Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 10 years 6 months, consisting of a non-parole period of 6 years 6 months, to commence on 22 February 2012 and expire on 21 August 2018. You will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.
Catchwords:	Sentence; attempt murder; car as weapon; mental illness; misconceived motive of child protection.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Hili v The Queen [2010] HCA 45 Munda v WA [2013] HCA 38 R v PRFN [2000] NSWCCA 230 Quealey v R [2010] NSWCCA 116 R v Swan [2006] NSWCCA 47 Way [2004] NSWCCA 131
Texts Cited:	â€œSignificant criminal appellate decisions in 2013â€ (2013) 25 Judicial Officersâ€™ Bulletin 89 Sentencing Bench Book
Category:	Principal judgment
Parties:	DS - The Offender The Crown
Representation:	Mr R Wilson, Public Defender - Offender Mr G Harrison, DPP - Crown
File Number(s):	2012/59375
Publication restriction:	No publication of children's names or anything that might identify them. Note: Judgment amended for publication to remove references which might identify the children.