R v DB [2001] NSWCCA 320

R v DB [2001] NSWCCA 320

Although the offences were very serious, the applicant's exceptionally strong subjective mitigating factors, particularly his age, good character, early pleas, remorse, cardiac disease and prostate cancer, meant that imprisonment was and would continue to be much more onerous for him than in the usual case. Because the prostate cancer probably existed at sentencing but was not then known, the Court re-exercised the sentencing discretion and imposed a reduced sentence with a finding of special circumstances.

Jurisdiction
Australia
Judgment Date
15 August 2001
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence and Appeal in the New South Wales Court of Criminal Appeal
Outcome
Time extended, leave to appeal granted, appeal allowed, and applicant re-sentenced.
Legal Topics
['child Sexual Offences' 'ill Health in Sentencing' 'fresh Exercise of Sentencing Discretion' 'good Character' 'guilty Plea Discount' 'special Circumstances' 'parole']
['criminal Law' 'sentencing'] ['child Sexual Offences' 'ill Health in Sentencing' 'fresh Exercise of Sentencing Discretion' 'good Character' 'guilty Plea Discount' 'special Circumstances' 'parole']

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence and Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the application for leave to appeal and for the appeal.' 'Whether the applicant was entitled to a fresh determination of sentence where prostate cancer probably existed at the time of sentencing but was not then known.' "Whether the sentencing discretion should be re-exercised having regard to the applicant's age, good character, guilty pleas, remorse, poor health and the onerousness of imprisonment." 'Whether special circumstances should be found.']

Ratio Decidendi

Although the offences were very serious, the applicant's exceptionally strong subjective mitigating factors, particularly his age, good character, early pleas, remorse, cardiac disease and prostate cancer, meant that imprisonment was and would continue to be much more onerous for him than in the usual case. Because the prostate cancer probably existed at sentencing but was not then known, the Court re-exercised the sentencing discretion and imposed a reduced sentence with a finding of special circumstances.

Court Disposition

Time extended, leave to appeal granted, appeal allowed, and applicant re-sentenced.

Orders

  • ['Extend time for application for leave to appeal and for appeal.' 'Grant leave to appeal and allow the appeal.' 'In respect of the first count, imprisonment for three years commencing on 30 June 2000 with a non-parole period of one year and six months, expiring on 29 December 2001, on which date the applicant will...