DB v R [2024] NSWCCA 18

DB v R [2024] NSWCCA 18

The sentencing judge did make a finding of special circumstances because, in context, his reference to making "only the very slightest of adjustments" could only have meant a slight downward adjustment from the statutory ratio. The sentence imposed did not give effect to that finding because the non-parole period of 14 years and 6 months was 76.3% of the 19-year aggregate sentence. As the extent of the intended adjustment was not specified and the parties agreed that a full resentencing was required, the sentence was quashed and the sentencing discretion exercised afresh. On resentencing, no special circumstances were found and the statutory ratio produced a non-parole period of 14 years...

Jurisdiction
Australia
Judgment Date
22 February 2024
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court; Appeal Allowed and Applicant Resentenced
Outcome
Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced to the same aggregate head sentence with a reduced non-parole period; commencement date of another sentence varied.
Legal Topics
['sentence Appeal' 'special Circumstances' 'non Parole Period' 'aggregate Sentence' 'resentencing' 'child Sexual Offences' 'child Abuse Material Offences']
['criminal Law' 'sentencing'] ['sentence Appeal' 'special Circumstances' 'non Parole Period' 'aggregate Sentence' 'resentencing' 'child Sexual Offences' 'child Abuse Material Offences']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the aggregate sentence imposed failed to give effect to the finding of special circumstances because the non-parole period exceeded the statutory ratio.' 'Whether the error could be corrected as a discrete or arithmetical error or required the Court to exercise the sentencing discretion afresh.' 'Whether special circumstances should be found on resentencing.' 'Whether consequential orders should be made under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to vary the commencement date of another sentence.']

Ratio Decidendi

The sentencing judge did make a finding of special circumstances because, in context, his reference to making "only the very slightest of adjustments" could only have meant a slight downward adjustment from the statutory ratio. The sentence imposed did not give effect to that finding because the non-parole period of 14 years and 6 months was 76.3% of the 19-year aggregate sentence. As the extent of the intended adjustment was not specified and the parties agreed that a full resentencing was required, the sentence was quashed and the sentencing discretion exercised afresh. On resentencing, no special circumstances were found and the statutory ratio produced a non-parole period of 14 years...

Court Disposition

Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced to the same aggregate head sentence with a reduced non-parole period; commencement date of another sentence varied.

Orders

  • ['Leave to appeal is granted.' 'The appeal against sentence is allowed.' 'The sentence imposed by Judge McGrath SC is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment for 19 years commencing on 31 March 2021 and expiring on 30 March 2040 with a non-parole period of 14...