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R v FD & JD

R v FD & JD

Case [2006] NSWCCA 31 21 February 2006

Aggravated & Exemplary Damages

Criminal Law

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Reported Decision:
160 A Crim R 392

New South Wales

Court of Criminal Appeal

CITATION: Regina v F.D; Regina v F.D; Regina v J.D [2006] NSWCCA 31

HEARING DATE(S): 17 August 200

JUDGMENT DATE:
21 February 2006

JUDGMENT OF: Sully J at 1; Hulme J at 147; Hall J at 209

DECISION: In the case of F.D: appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed; In the cases of the Crown appeals against sentence, each such Crown appeal dismissed.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: M v The Queen (1984) 181 CLR 487
Reg v Simpson (2001) 53 NSWLR 704
Reg v Allpass (1993) 72 A Crim R 561
Reg v Bermingham (No. 2) (1997) 96 A Crim R 545
The Queen v Glennon (1992) 173 CLR 592
Reg v Previtera (1997) 94 A Crim R 76
Reg v Tzanis [2005] NSWCCA 274
Reg v Reid [2005] NSWCCA 309
Veen v The Queen (No. 2) (1988) 164 CLR 465
Pearce v The Queen (1998) 194 CLR 610
R v Richards [1981] 2 NSWLR 464
R v Readman (1990) 47 A Crim R 181
R v Way (2004) 60 NSWLR 168
R v Previtera (1977) 92 A Crim R 76
Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) 137 A Crim R 196 at [57]
R v Berg [2004] NSWCCA 300
R v Tzanis [2005] NSWCCA 274
R v Wilson [2005] NSWCCA 219
R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES: Regina
F.D
J.D

FILE NUMBER(S): CCA 2005/1439; 2005/510; 2005/509

COUNSEL: G.E. Smith SC/M.L. Woodburne - Crown
C. Craigie SC - J.D
R. Bonnici - F.D

SOLICITORS: S. Kavanagh - Crown
Murphy's Lawyers - J.D
S. O'Connor - F.D

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/45
2004/11

LOWER COURT JUDICIAL OFFICER: Levine J

2005/1439
2005/510
2005/509

SULLY J
HULME J
HALL J
21 February 2006

REGINA v F.D.

REGINA v J.D.

Judgment

Non publication order: The Court orders that in any report of this judgment or of the proceedings with which the judgment deals the offenders are to be referred to only as, respectively, FD and JD.

There is to be no publication of any material the effect of which would be to disclose the identity of either offender.

There is to be, in particular, no reporting of the relationship existing between the two offenders.

SULLY J:

Introduction

1 There are before the Court three appeals and an application for leave to appeal. They comprise: first, an appeal by F.D. against his conviction for murder; secondly, an application by F.D. to appeal against sentence; thirdly, a Crown appeal against sentence, the respondent being F.D.; and fourthly, a Crown appeal against sentence, the respondent being J.D.

2 In November and December 2004 F.D. and J.D. stood trial jointly before Levine J and…

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 FD & JD

Details

AGLC: R v FD and JD [2006] NSWCCA 31
Case: [2006] NSWCCA 31
Decision Date: 21 February 2006

CaseChat Overview and Summary

The appeal was brought by F.D. against his conviction for murder, and an application was made by F.D. to appeal against his sentence. In addition, the Crown brought appeals against the sentences of both F.D. and J.D. The NSW Court of Criminal Appeal was asked to consider whether the sentences were manifestly inadequate and whether the trial judge had erred in his application of the Crimes (Sentencing Procedure) Act 1999 (NSW) or in his consideration of the relevant aggravating and mitigating factors. The appeal against conviction was dismissed, and leave to appeal against sentence was granted in relation to F.D. However, the appeal against sentence was dismissed in relation to both F.D. and J.D. The majority found that the sentences were not manifestly inadequate, and that the trial judge had not erred in his application of the Sentencing Act. It was found that there was some error in the trial judge's approach to the aggravating and mitigating factors, but this did not amount to manifest inadequacy.

Orders