Regina v DJM - [2002] NSWCCA 493

CITATION: REGINA v DJM [2002] NSWCCA 493

FILE NUMBER(S): CCA 60477/02

HEARING DATE(S): 9/12/02

JUDGMENT DATE:
9 December 2002

PARTIES :

REGINA
DJM (Applicant)

JUDGMENT OF: Bell J at 1; Buddin J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/41/0030

LOWER COURT JUDICIAL
OFFICER : Garling DCJ

COUNSEL : GIO Rowling (Crown)
HK Dhanji (Applicant)

SOLICITORS: SE O'Connor
DJ Humphreys

LEGISLATION CITED: R v Engert (1995) 84 A Crim R 67
R v Fahda (1999) NSWCCA 267
R v Foster [2001] NSWCCA 215
R v Letteri (unreported), NSWCCA 18 March 1992
R v Mooney (unreported) 21 June 1978
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48
R v Zamagias (2002) NSWCCA 17

CASES CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION: Application for leave to appeal granted; Appeal dismissed

60477/02

BELL J
BUDDIN J
9 December 2002

REGINA v DJM

Judgment

1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court at Nowra by his Honour Judge Garling on 20 June 2002.

2 The applicant pleaded guilty to two counts of having sexual intercourse with a person aged between ten and sixteen, who at the time was under his authority contrary to section 66C(2) of the Crimes Act 1900. His Honour imposed sentences in each case of two years imprisonment and specified a non-parole period of one year. The sentences were ordered to be served concurrently and to date from the date of sentence 20 June 2002. The maximum penalty provided for an offence contrary to section 66C subsection 2 is one of ten years imprisonment.

3 The facts on which Judge Garling sentenced the applicant are as set out in his reasons for sentence:

“The facts which I have been given are these. Firstly, the prisoner had a relationship with C prior to this date. It had commenced some months earlier with the relationship progressing to kissing and cuddling.

On 26 October 2001 C was just under fifteen years of age, I believe two weeks under fifteen years of age. She and a friend, T, went with the prisoner and they went fishing. Whilst T was present the prisoner and C started kissing. They drove to another area, stopped and the prisoner placed his hand down the front of her swimmers and inserted his finger into her vagina. Later on there was further sexual activity. C got on top of the prisoner, they began kissing, touching and feeling each other’s parts. C put her hand down the prisoner’s pants, apparently masturbating his penis. She then put his penis in her mouth and, after a time, they went home.

T spoke to her mother about it. C denied that anything of a sexual nature had taken place. At a later time, her mother again spoke to her and, on that occasion, she said that it had taken place 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 Regina v DJM

Details

AGLC: Regina v DJM [2002] NSWCCA 493
Case: [2002] NSWCCA 493
Decision Date: 9 December 2002

CaseChat Overview and Summary

The Court of Criminal Appeal was asked to consider an application for leave to appeal against the severity of sentences imposed by Judge Garling DCJ in the District Court at Nowra. The applicant, DJM, had pleaded guilty to two counts of having sexual intercourse with a person under his authority who was aged between ten and sixteen years. DJM was sentenced to two years imprisonment, with a non-parole period of one year to be served concurrently. The primary legal issues were whether the District Court judge erred in the emphasis he placed on deterrence in sentencing DJM, and whether the judge failed to consider alternatives to a sentence of imprisonment. DJM's counsel argued that the District Court judge should have given less weight to general deterrence in light of DJM's mental condition and should have considered non-custodial alternatives to imprisonment. The Court of Criminal Appeal held that the District Court judge had appropriately taken DJM's mental condition into account and that the sentence imposed demonstrated a considerable measure of leniency. The Court also found that the failure to explicitly state that alternatives to imprisonment had been considered did not reveal error. The application for leave to appeal was granted, but the appeal was dismissed. The Court ordered that DJM's sentences as imposed by the District Court should stand.

Orders