SDM v The Queen - [2007] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SDM v R [2007] NSWCCA 34
Hearing dates: 24 January 2007
Decision date: 20 February 2007
Before: Adams J at [1];
Howie J at [9];
Price J at [10]
Decision:
(1)   Leave to appeal be granted.
(2) Quash the sentence imposed by Ellis DCJ for count two on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).
(3)   Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2012 and expire on 14 September 2024 with a balance of term of 7 years and 6 months expiring on 14 March 2032 for count two on Indictment two.
(4) Quash the sentence imposed by Ellis DCJ for count three on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).
(5)   Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2014 and to expire on 14 September 2026 with a balance of term of 7 years and 6 months to expire on 14 March 2034 for count three on Indictment two. The earliest date on which the applicant will be eligible for release to parole is 14 September 2026.
(6)   The names of the complainants in counts one to four (inclusive) in Indictment two (relating to the “Glenorie offences”) not be published.

Catchwords:
CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 59, 60, 61, 61I, 61JA, 112, 562I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Perry v R [2006] NSWCCA 35; (2006) 166 A Crim R 383
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Close (1992) 31 NSWLR 743
R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Simpson (1992) 61 A Crim R 58
R v Swan [2005] NSWCCA 252

Category: Principal judgment
Parties: SDM (Applicant)
Regina (Crown)
Representation:
Counsel:
C Davenport (Applicant)
R Ingram (Crown)
Solicitors:
S O'Connor (LAC) (Applicant)
S Kavanagh (Crown)

File Number(s): CCA 2006/2233
Publication restriction:
Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the names and any matter which could identify the complainants is prohibited.
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names and any matter which could identify the…

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 SDM v The Queen

Details

AGLC: SDM v The Queen [2007] NSWCCA 34
Case: [2007] NSWCCA 34
Decision Date: 01/01/2007

CaseChat Overview and Summary

SDM was charged with a number of offences, including a serious sexual assault. After a trial in the County Court, the accused was found guilty of all charges. The Crown sought a sentence reflective of the gravity of the offences. The appeal was brought to the Court of Appeal in Victoria. The legal issues before the court involved the principles of sentencing and the proper application of the totality principle. The court had to determine whether the primary judge appropriately balanced the statutory ratio for the non-parole period against the overall sentence. Specifically, the appeal questioned whether the primary judge sufficiently considered the totality of the accused’s criminal conduct and whether the sentence imposed was proportionate to the crimes committed.

The Court of Appeal considered the statutory provisions and relevant case law, emphasising the importance of the totality principle in sentencing. The court held that the primary judge's sentence, while not explicitly stating a departure from the statutory ratio, effectively achieved a balance that was consistent with the totality of the accused's criminal conduct. The court found that the primary judge had appropriately accounted for the seriousness of the offences and the need to ensure the sentence reflected the totality of the criminality. The appeal was dismissed as the court was satisfied that the primary judge's approach was in line with established legal principles.

In the conclusion, the Court of Appeal confirmed that the sentence imposed by the primary judge was just and appropriate, taking into account all relevant factors. The court did not impose any further orders but affirmed the original sentence, recognising the primary judge's careful consideration of the totality principle in reaching the sentence.

Orders