R v RD [2014] NSWCCA 103

R v RD [2014] NSWCCA 103

The original sentences were manifestly inadequate considering the objective gravity and aggravating features, particularly the victim's pregnancy and the respondent's knowledge thereof. While the respondent's disadvantaged background and intellectual capacity are mitigating, they do not explain or excuse the criminality. Therefore, an aggregate sentence of 5½ years with a non-parole period of 2 years and 9 months is appropriate; residual discretion does not justify withholding intervention.

Parties
Applicant: Crown; Respondent: RD
Jurisdiction
Australia
Judgment Date
24 June 2014
Procedural Posture
Criminal Appeal / Appeal Against Sentence (crown Appeal)
Outcome
Appeal allowed; sentences quashed; respondent resentenced to 5½ years with a non-parole period of 2 years and 9 months.
Legal Topics
Sentence, Sexual Intercourse With Child, Manifestly Inadequate Sentence, Discount for Plea of Guilty, Social Deprivation, Crown Appeal Powers, Aggregation and Concurrency in Sentencing
Criminal Law Sentence Sexual Intercourse With Child Manifestly Inadequate Sentence Discount for Plea of Guilty Social Deprivation Crown Appeal Powers Aggregation and Concurrency in Sentencing

Case Brief

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Parties

Crown

Applicant

RD

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (crown Appeal)

Legal Issues

  1. 1 Whether the sentence imposed for sexual intercourse with a child was manifestly inadequate
  2. 2 Whether the sentencing judge erred in the discount for guilty plea and approach to accumulation/concurrence
  3. 3 Whether residual discretion should preclude intervention in a Crown sentence appeal

Ratio Decidendi

The original sentences were manifestly inadequate considering the objective gravity and aggravating features, particularly the victim's pregnancy and the respondent's knowledge thereof. While the respondent's disadvantaged background and intellectual capacity are mitigating, they do not explain or excuse the criminality. Therefore, an aggregate sentence of 5½ years with a non-parole period of 2 years and 9 months is appropriate; residual discretion does not justify withholding intervention.

Court Disposition

Appeal allowed; sentences quashed; respondent resentenced to 5½ years with a non-parole period of 2 years and 9 months.

Orders

  • The appeal is allowed.
  • The sentences imposed by Judge Berman are quashed.