Medium Neutral Citation: R v DS; R v DM [2020] NSWSC 422
Hearing dates: 31 October 2019; 14 November 2019; 14 February 2020; 28 February 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Jurisdiction: Common Law - Criminal
Before: Bellew J
Decision:
The offender DS

In respect of the offender DS, I make the following orders:

1) In respect of the charge of taking and driving a motor vehicle in circumstances of aggravation, the offender is convicted.

2) In respect of that charge, the offender is sentenced to 6 years and 4 months imprisonment commencing on 7 April 2017 and expiring on 6 August 2023. I decline to set a non-parole period on the basis that there is no utility in doing so.

3) In respect of the charge of murder, the offender is convicted.

4) In respect of that charge, the offender is sentenced to imprisonment for 15 years and 4 months to date from 7 April 2020 and to expire on 6 August 2035.

5) I specify a non-parole period of 10 years and 9 months to date from 7 April 2020 and to expire on 6 January 2031.

6) The total term of imprisonment imposed is one of 18 years and 4 months imprisonment.

7) The offender will be eligible for parole on 7 January 2031 and the sentence will expire on 6 August 2035.

8) Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) I order that the offender serve his sentence as a juvenile offender until he attains 21 years of age.

9) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I advise the offender of the existence of that Act and of its application to the offences.

The offender DM

In respect of the offender DM, I make the following orders:

1) In respect of the offence of armed robbery with wounding, the offender is convicted.

2) In respect of the offence of armed robbery with wounding, the offender is sentenced to imprisonment for 11 years and 8 months commencing on 7 April 2017 and expiring on 6 December 2028. I decline to specify a non-parole period on the basis that there is no utility in doing so.

3) In respect of the offence of taking and driving a motor vehicle in circumstances of aggravation, the offender is convicted.

4) In respect of the offence of taking and driving a motor vehicle in circumstances of aggravation, the offender is sentenced to 9 years imprisonment commencing on 7 April 2017 and expiring on 6 April 2026. I decline to specify a non-parole period on the basis that there is no utility in doing so.

5) In respect of the offence of wounding with intent to do grievous bodily harm the offender is convicted.

6) In respect of the offence of wounding with intent to do grievous bodily harm, the offender is sentenced to imprisonment for 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 DS; R v DM

Details

AGLC: R v DS; R v DM [2020] NSWSC 422
Case: [2020] NSWSC 422
Decision Date: 01 May 2020

CaseChat Overview and Summary

In the recent cases of R v DS and R v DM, the Supreme Court was tasked with determining the appropriate sentences for two juvenile offenders involved in separate but related criminal activities. DS was found guilty of constructive murder and aggravated taking of a motor vehicle with an occupant on board, while DM was convicted of armed robbery with wounding and aggravated taking of a motor vehicle with an occupant on board. Both offenders were under the age of 18 at the time of the offences, raising significant legal issues regarding the application of sentencing principles for young offenders, particularly in cases of extreme violence.

The court had to consider the appropriate sentencing approach for young offenders in cases involving serious and violent crimes. This involved assessing the extent to which youth could mitigate the severity of the sentence, given the nature of the crimes committed. The court also needed to evaluate the extent of the offenders' remorse, their background, mental health status, and prospects for rehabilitation. Additionally, the court had to balance these considerations against the need for general and specific deterrence, as well as the seriousness of the crimes.

In reaching its decision, the court emphasised the importance of considering the youth of the offenders, particularly in cases of extreme violence. The court acknowledged that while youth can be a mitigating factor, it does not necessarily absolve the offender of responsibility. In the case of DS, the court found that the offender's youth, genuine expressions of remorse, deprived background, and favourable prospects of rehabilitation warranted a provisional sentence. The court also took into account the special circumstances that justified adjusting the statutory ratio, ultimately determining that DS should serve their term of imprisonment as a juvenile offender up to the age of 21. Conversely, the court found that DM's lack of genuine remorse, adult-like behaviour, deprived background, and mental disorder at the time of the offence did not warrant a significant mitigation of the sentence.

The final orders of the court included a provisional sentence for DS, with the term of imprisonment to be served as a juvenile offender until the age of 21. For DM, the court imposed a more severe sentence, reflecting the seriousness of the offences and the lack of significant mitigating factors.

Orders