Doe v Regina [2013] NSWCCA 248

Doe v Regina [2013] NSWCCA 248

Although the sentencing judge made a material Muldrock error in relation to counts 1, 6 and 8 by adopting an impermissible two stage approach to the standard non-parole period, no error was shown in relation to count 2, where the standard non-parole period was used only as a reference point. Having regard to the substantial delay, finality, the victim's interests, the seriousness of the offending, and the absence of any basis for concluding that a lesser sentence was warranted in law, refusal of an extension of time would not cause substantial injustice. The application for extension of time was therefore dismissed.

Jurisdiction
Australia
Judgment Date
08 November 2013
Procedural Posture
Criminal Appeal / Application for Extension of Time in Which to Seek Leave to Appeal Against Sentence
Outcome
Application for extension of time dismissed.
Legal Topics
['extension of Time' 'standard Non Parole Period' 'muldrock Error' 'sexual Intercourse Without Consent' 'digital Penetration and Objective Seriousness']
['criminal Law' 'sentencing' 'criminal Appeals'] ['extension of Time' 'standard Non Parole Period' 'muldrock Error' 'sexual Intercourse Without Consent' 'digital Penetration and Objective Seriousness']

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Procedural Posture

Criminal Appeal / Application for Extension of Time in Which to Seek Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether an extension of time should be granted to seek leave to appeal against sentence.' 'Whether the sentencing judge erred in applying the standard non-parole period legislation in light of Muldrock v R (2011) 244 CLR 120; [2011] HCA 39.' 'Whether any established error was material and had the capacity to infect the sentencing discretion.' 'Whether a lesser sentence was warranted in law.' 'Whether offending involving digital penetration should be regarded as less serious than other forms of forced sexual intercourse.']

Ratio Decidendi

Although the sentencing judge made a material Muldrock error in relation to counts 1, 6 and 8 by adopting an impermissible two stage approach to the standard non-parole period, no error was shown in relation to count 2, where the standard non-parole period was used only as a reference point. Having regard to the substantial delay, finality, the victim's interests, the seriousness of the offending, and the absence of any basis for concluding that a lesser sentence was warranted in law, refusal of an extension of time would not cause substantial injustice. The application for extension of time was therefore dismissed.

Court Disposition

Application for extension of time dismissed.

Orders

  • ['The application for extension of time is dismissed.']