Darke v R [2022] NSWCCA 52

Darke v R [2022] NSWCCA 52

The sentencing discretion miscarried because the sentencing judge failed to apply the mandatory consideration in s 16A(2AAA) of the Crimes Act 1914 (Cth), which requires explicit regard to the objective of rehabilitation for Commonwealth child sex offenders by considering appropriate rehabilitation or treatment conditions and structuring sentence lengths accordingly. As a result, the appeal is allowed and the applicant is resentenced with explicit rehabilitation conditions and a tailored release order.

Parties
Applicant: Jayson David Darke; Respondent: Regina
Jurisdiction
Australia
Judgment Date
16 March 2022
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Sentence Appeal
Outcome
Appeal allowed; sentence quashed; new sentence imposed with release conditions
Legal Topics
Sentence Appeal, Manifest Excess, Commonwealth Child Sex Offences, Application of Crimes Act 1914 (cth) S 16 A(2 Aaa), Objective Seriousness, Rehabilitation
Criminal Law Sentence Appeal Manifest Excess Commonwealth Child Sex Offences Application of Crimes Act 1914 (cth) S 16 A(2 Aaa) Objective Seriousness Rehabilitation

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Parties

Jayson David Darke

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Sentence Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred by failing to apply s 16A(2AAA) of the Crimes Act 1914 (Cth)
  2. 2 Whether delay, cooperation, and application of s 17A were properly considered
  3. 3 Whether the sentence imposed was manifestly excessive

Ratio Decidendi

The sentencing discretion miscarried because the sentencing judge failed to apply the mandatory consideration in s 16A(2AAA) of the Crimes Act 1914 (Cth), which requires explicit regard to the objective of rehabilitation for Commonwealth child sex offenders by considering appropriate rehabilitation or treatment conditions and structuring sentence lengths accordingly. As a result, the appeal is allowed and the applicant is resentenced with explicit rehabilitation conditions and a tailored release order.

Court Disposition

Appeal allowed; sentence quashed; new sentence imposed with release conditions

Orders

  • Grant leave to appeal against sentence.
  • Appeal allowed.