R v DP [2019] NSWCCA 55

R v DP [2019] NSWCCA 55

Although it was open to the sentencing judge to characterise the objective seriousness of the offending as in the middle of a very wide range, the sentence of 7 years with a non-parole period of 4 years was manifestly inadequate. The respondent's mature age, position of familial trust and authority, the complainant's vulnerability and young age, the absence of protection against pregnancy, and the physical and psychological impact of the resulting pregnancy and birth gave the offending a very high degree of moral culpability. The respondent's subjective circumstances did not significantly mitigate the offending. The residual discretion should not be exercised because the original sentence...

Jurisdiction
Australia
Judgment Date
18 March 2019
Procedural Posture
Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Appeal allowed; sentence quashed; respondent re-sentenced to 9 years imprisonment with a non-parole period of 5 years and 3 months.
Legal Topics
['aggravated Sexual Intercourse With a Child Without Consent' 'manifest Inadequacy of Sentence' 'objective Seriousness' 'circumstances of Aggravation' 'pregnancy Resulting From Sexual Offence' 'residual Discretion in Crown Appeals']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Sexual Intercourse With a Child Without Consent' 'manifest Inadequacy of Sentence' 'objective Seriousness' 'circumstances of Aggravation' 'pregnancy Resulting From Sexual Offence' 'residual Discretion in Crown Appeals']

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the offending as in the middle of the range.' 'Whether the sentence of 7 years with a non-parole period of 4 years was manifestly inadequate.' "Whether the complainant's pregnancy and associated physical and psychological impact aggravated the seriousness of the offending." 'Whether the Court should exercise its residual discretion not to intervene on the Crown appeal.']

Ratio Decidendi

Although it was open to the sentencing judge to characterise the objective seriousness of the offending as in the middle of a very wide range, the sentence of 7 years with a non-parole period of 4 years was manifestly inadequate. The respondent's mature age, position of familial trust and authority, the complainant's vulnerability and young age, the absence of protection against pregnancy, and the physical and psychological impact of the resulting pregnancy and birth gave the offending a very high degree of moral culpability. The respondent's subjective circumstances did not significantly mitigate the offending. The residual discretion should not be exercised because the original sentence...

Court Disposition

Appeal allowed; sentence quashed; respondent re-sentenced to 9 years imprisonment with a non-parole period of 5 years and 3 months.

Orders

  • ['The Crown appeal is allowed.' 'The sentence imposed in the District Court is quashed.' 'The respondent is sentenced to a term of imprisonment of 9 years, comprising a non-parole period of 5 years and 3 months commencing 24 March 2018 and expiring 23 June 2023, with a balance of term of 3 years and 9 months...