DB v R [2024] NSWCCA 18

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DB v R [2024] NSWCCA 18 Hearing dates: 30 January 2024 Date of orders: 22 February 2024 Decision date: 22 February 2024 Before: Davies J at [1] Hamill J at [2] Huggett J at [28] Decision: (1) Leave to appeal is granted. (2) The appeal against sentence is allowed. (3) The sentence imposed by Judge McGrath SC is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment for 19 years commencing on 31 March 2021 and expiring on 30 March 2040 with a non-parole period of 14 years and 3 months expiring on 30 June 2035. (4) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I vary the commencement date of the applicant's aggregate fixed term of imprisonment of 20 months imposed by Walmsley SC ADCJ (2021/00228705) to 30 April 2034. The effect of that variation will be that the sentence will expire on 29 December 2035 (and not 29 March 2036). Catchwords: CRIMINAL LAW – sentence appeal – applicant sentenced in relation to a number of contact and non-contact sexual offences – whether the sentencing judge made a finding of special circumstances – the non-parole period was greater than the statutory ratio – approach to re-sentencing – whether discrete matter or arithmetical error – tension in authorities – where parties agree full re-sentencing is required – unfairness – offender resentenced (but only in so far as the non-parole period) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Cases Cited: Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Christian v R [2021] NSWCCA 300 CM v R [2013] NSWCCA 341 Davis v R [2015] NSWCCA 90 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Maglis v The Queen [2010] NSWCCA 247 Maglovski v R [2014] NSWCCA 238 McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155 O'Connell v R [2016] NSWCCA 43 R v Bolamatu [2002] NSWCCA 454 Sausa v R [2023] NSWCCA 95 Sharrock [1999] NSWCCA 289 Tenenboim v R [2024] NSWCCA 1 Turnbull v R [2019] NSWCCA 97 Category: Principal judgment Parties: DB (Applicant) Rex (Respondent) Representation: Counsel: R Rajalingam (Applicant) V Garrity (Respondent)