DE v R [2021] NSWCCA 315

DE v R [2021] NSWCCA 315

The sentence imposed on the applicant was manifestly excessive owing to the below mid-range objective seriousness of the offence, material reduction in moral culpability and general deterrence due to the applicant's significant intellectual disability, and the operation of the Bugmy principles. Sentences in comparable cases tended to indicate that the applicant's sentence was outside the range reasonably available and bespoke error, justifying intervention and re-sentencing.

Jurisdiction
Australia
Judgment Date
21 December 2021
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed; sentence quashed; applicant re-sentenced.
Legal Topics
['sentencing' 'appeals' 'sexual Offences' 'manifest Excess' 'intellectual Disability' 'indigenous Offenders']
['criminal Law'] ['sentencing' 'appeals' 'sexual Offences' 'manifest Excess' 'intellectual Disability' 'indigenous Offenders']

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentence for sexual intercourse without consent was manifestly excessive.' "Whether applicant's intellectual disability and background warranted sentence mitigation." 'Application of principles in Bugmy v The Queen to sentencing of indigenous offenders with intellectual disability.']

Ratio Decidendi

The sentence imposed on the applicant was manifestly excessive owing to the below mid-range objective seriousness of the offence, material reduction in moral culpability and general deterrence due to the applicant's significant intellectual disability, and the operation of the Bugmy principles. Sentences in comparable cases tended to indicate that the applicant's sentence was outside the range reasonably available and bespoke error, justifying intervention and re-sentencing.

Court Disposition

Appeal allowed; sentence quashed; applicant re-sentenced.

Orders

  • ['The applicant has leave to appeal.' 'The appeal is allowed.' 'The sentence imposed on 9 April 2020 in respect of count 1 is quashed.' 'In lieu of that sentence, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 October 2019 and expiring on...