R v JD

Case [2018] NSWCCA 233 19 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v JD [2018] NSWCCA 233
Hearing dates: 10 August 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Before: Meagher JA at [1];
Hoeben CJ at CL at [2];
Fagan J at [110]
Decision:
(1)   The Crown appeal is allowed.
(2)   The aggregate sentence imposed on the respondent on 16 February 2018 by his Honour Judge Lakatos SC in respect of the offences against “R” is quashed.
(3)   In lieu thereof, the respondent is sentenced to an aggregate sentence with a non-parole period of 8 years, commencing 17 June 2015 and expiring 16 June 2023, with a balance of term of 4 years expiring 16 June 2027.
(4)   The respondent will be eligible for parole on 16 June 2023.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – 19 domestic violence offences committed against wife and daughter over six year period – whether sentence manifestly inadequate – objective seriousness of offending high – offender’s strong subjective case – indicative sentences suggestive of error – Crown appeal allowed – offender resentenced.
Legislation Cited: Crimes Act 1900 (NSW) – ss 33B(1)(a), 59(1), 61, 61I, 61J, 61L, 86(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A(2)(ea) (eb) (g), 23(2)
Criminal Appeal Act 1912 (NSW) – s 5D(1)
Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Cherry v R [2017] NSWCCA 150
CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Everett v The Queen [1994] HCA 49; 181 CLR 295
Graham v Regina [2009] NSWCCA 212
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
JM v R [2014] NSWCCA 297; 239 A Crim R 528
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Postiglione v R [1997] HCA 26; 189 CLR 295
R v Barker [2016] NSWCCA 193
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Harris [2015] NSWCCA 81
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v Lee [2000] NSWCCA 392
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v O’Connor [2014] NSWCCA 53; 239 A Crim R 487
R v S [2000] NSWCCA 13; 111 A Crim R 225
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Category: Principal judgment
Parties: Regina – Appellant Crown
JD – Respondent
Representation:
Counsel:

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 JD

Details

AGLC: R v JD [2018] NSWCCA 233
Case: [2018] NSWCCA 233
Decision Date: 19 October 2018

CaseChat Overview and Summary

The appeal arose from a conviction in the County Court for 19 offences of domestic violence committed by the appellant against his wife and daughter over a six-year period. The appellant was sentenced to a total of three years imprisonment, with a non-parole period of 18 months. The Crown appealed against the sentence, arguing it was manifestly inadequate. The appeal was heard in the Court of Appeal, which had to determine whether the sentence imposed was manifestly inadequate and whether it reflected the objective seriousness of the offending. The court also considered the appellant's subjective case and the indicative sentences for similar offences.

The Court of Appeal found that the original sentence did not adequately reflect the objective seriousness of the offending. The court emphasised the high level of harm caused to the victims, the persistent and pervasive nature of the abuse, and the appellant's lack of remorse. The court considered the appellant's subjective case, including his claims of mitigating factors such as mental health issues and family circumstances, but found these factors did not sufficiently mitigate the severity of the offending. The indicative sentences for similar offences suggested that the original sentence was lower than appropriate. Consequently, the court allowed the Crown's appeal and ordered a resentencing hearing.

The Court of Appeal did not provide specific details of the new sentence but directed that the resentencing hearing consider the objective seriousness of the offending, the appellant's subjective case, and the indicative sentences for similar offences. The court stressed the need for the new sentence to adequately reflect the harm caused to the victims and to provide appropriate deterrence and rehabilitation for the appellant. The outcome of the resentencing hearing was not provided in the text.

Orders