DL v R [2020] NSWCCA 164

DL v R [2020] NSWCCA 164

The Court granted leave and allowed the appeal because the aggregate sentence of 20 years with a non-parole period of 15 years was manifestly excessive. Although the offending was serious and involved planning, breach of trust and child victims, the overall assessment of objective seriousness and the application of totality and proportionality produced a sentence so far outside the appropriate range that error was inferred. The majority rejected Grounds 1(a), 1(b) and 2, holding that procedural unfairness and error concerning Dr Nielssen's report were not made out and that the late pleas were not used as an aggravating factor, but Ground 3 was upheld and the applicant was re-sentenced.

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; original aggregate sentence quashed; applicant re-sentenced to imprisonment for 13 years and 6 months with a non-parole period of 10 years.
Legal Topics
['sentence Appeal' 'sexual Offences Against Children' 'child Abuse Material' 'procedural Fairness' 'psychiatric Evidence on Sentence' 'guilty Plea Discount' 'manifest Excess' 'aggregate Sentence' 'totality']
['criminal Law' 'sentencing' 'criminal Procedure'] ['sentence Appeal' 'sexual Offences Against Children' 'child Abuse Material' 'procedural Fairness' 'psychiatric Evidence on Sentence' 'guilty Plea Discount' 'manifest Excess' 'aggregate Sentence' 'totality']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the applicant was denied procedural fairness when the sentencing judge gave no weight to the psychiatric opinion of Dr Nielssen.' 'Whether the sentencing judge erred in giving no weight to the psychiatric diagnoses of Dr Nielssen.' "Whether the sentencing judge took the applicant's late guilty pleas into account as an aggravating factor." 'Whether the aggregate sentence was manifestly excessive having regard to the objective seriousness of the offences.']

Ratio Decidendi

The Court granted leave and allowed the appeal because the aggregate sentence of 20 years with a non-parole period of 15 years was manifestly excessive. Although the offending was serious and involved planning, breach of trust and child victims, the overall assessment of objective seriousness and the application of totality and proportionality produced a sentence so far outside the appropriate range that error was inferred. The majority rejected Grounds 1(a), 1(b) and 2, holding that procedural unfairness and error concerning Dr Nielssen's report were not made out and that the late pleas were not used as an aggravating factor, but Ground 3 was upheld and the applicant was re-sentenced.

Court Disposition

Leave to appeal granted; appeal allowed; original aggregate sentence quashed; applicant re-sentenced to imprisonment for 13 years and 6 months with a non-parole period of 10 years.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The aggregate sentence imposed by Wilson SC DCJ on 2 May 2019 in the District Court at Gosford is quashed.' 'In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 20 March 2017 and expiring 19 March 2027, with a...