Du Plessis v R [2024] NSWCCA 164

Du Plessis v R [2024] NSWCCA 164

The sentencing judge's finding of vulnerability was available on the facts and properly considered as part of the assessment of objective seriousness, but did not amount to double-counting under s 21A(2)(l). However, the sentence imposed was unreasonable and manifestly excessive given the applicant's subjective case and the factors identified, warranting a reduction on resentencing.

Parties
Applicant: George Du Plessis; Respondent: Rex
Jurisdiction
Australia
Judgment Date
06 September 2024
Procedural Posture
Criminal Appeal / Appeal Against Sentence, With Application for Leave to Appeal Out of Time
Outcome
Appeal allowed (in part); sentence quashed and applicant resentenced
Legal Topics
Appeal Against Sentence, Aggravated Sexual Intercourse Without Consent, Vulnerable Victim, Manifest Excess, Sentencing Principles
Criminal Law Appeal Against Sentence Aggravated Sexual Intercourse Without Consent Vulnerable Victim Manifest Excess Sentencing Principles

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Parties

George Du Plessis

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence, With Application for Leave to Appeal Out of Time

Legal Issues

  1. 1 Whether the sentencing judge erred in finding the complainant to be vulnerable and the offence to be aggravated by that fact when it was an element of the offences
  2. 2 Whether the sentence was manifestly excessive

Ratio Decidendi

The sentencing judge's finding of vulnerability was available on the facts and properly considered as part of the assessment of objective seriousness, but did not amount to double-counting under s 21A(2)(l). However, the sentence imposed was unreasonable and manifestly excessive given the applicant's subjective case and the factors identified, warranting a reduction on resentencing.

Court Disposition

Appeal allowed (in part); sentence quashed and applicant resentenced

Orders

  • Grant leave to file notice of appeal out of time
  • Grant leave to appeal