DS v R; DM v R [2022] NSWCCA 156

DS v R; DM v R [2022] NSWCCA 156

Assessment of objective seriousness is distinct from assessment of moral culpability; the sentencing judge erred in sentencing DS by reference to DM's offending and not properly addressing special circumstances. DS's and DM's sentences were manifestly excessive and failed to proportionately reflect their roles, youth, and backgrounds. Sentences set aside and applicants resentenced to shorter aggregate terms reflecting these principles.

Jurisdiction
Australia
Judgment Date
13 July 2022
Procedural Posture
Criminal Sentence Appeal / Court of Criminal Appeal; Leave to Appeal Sentence, Resentencing
Outcome
Appeals allowed; both DS and DM resentenced; sentences imposed on 1 May 2020 set aside.
Legal Topics
['sentencing' 'murder' 'youth Offending' 'objective Seriousness' 'moral Culpability' 'sentencing Principles' 'parity' 'manifest Excess' 'special Circumstances']
['criminal Law'] ['sentencing' 'murder' 'youth Offending' 'objective Seriousness' 'moral Culpability' 'sentencing Principles' 'parity' 'manifest Excess' 'special Circumstances']

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Procedural Posture

Criminal Sentence Appeal / Court of Criminal Appeal; Leave to Appeal Sentence, Resentencing

Legal Issues

  1. 1 ["Whether assessment of an offender's moral culpability is part of the determination of objective seriousness of offending" 'Whether the sentencing judge erred in assessing objective seriousness and moral culpability for DS and DM' 'Whether the significance of youth was properly applied' 'Whether error occurred with respect to special circumstances and manifest excess']

Ratio Decidendi

Assessment of objective seriousness is distinct from assessment of moral culpability; the sentencing judge erred in sentencing DS by reference to DM's offending and not properly addressing special circumstances. DS's and DM's sentences were manifestly excessive and failed to proportionately reflect their roles, youth, and backgrounds. Sentences set aside and applicants resentenced to shorter aggregate terms reflecting these principles.

Court Disposition

Appeals allowed; both DS and DM resentenced; sentences imposed on 1 May 2020 set aside.

Orders

  • ['DS granted leave to appeal; appeal allowed; sentenced to an aggregate term of 14 years and 6 months imprisonment from 7 April 2017, expiring 6 October 2031; non-parole period of 10 years expiring 6 April 2027; earliest release on parole 7 April 2027; sentences that would have been imposed: 13 years 6 months for...