DJB v R R v DJB [2007] NSWCCA 209

New South Wales Court of Criminal Appeal

CITATION: DJB v R R v DJB [2007] NSWCCA 209

HEARING DATE(S): 18 May 2007

JUDGMENT DATE: 17 July 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 87; Price J at 89

DECISION: 1. Appeal against convictions dismissed; 2. Crown appeal allowed; 3. The commencement date and the expiration date which were fixed by the judge in the District Court for count 2 be set aside; 4. In respect of count 2 the non-parole period of 8 years is to commence on 11 October 2006 and is to expire on 10 October 2014. The balance of term is to commence on 11 October 2014 and is to expire on 10 October 2018; 5. Total effective sentence of imprisonment is a non-parole period of 10 years with a balance of term of 4 years; 6. The earliest date for release to parole is 10 October 2014.

CATCHWORDS: CRIMINAL LAW - Conviction appeal and Crown appeal against sentence - unlawfully administering an overpowering drug Diazepam with intent to have sexual intercourse - sexual intercourse without consent - 14 year old victim - amendment made to original indictment - whether trial a nullity - directions to jury - whether directions caused jury to confuse the conduct of the appellant with that of his son - whether jury was misdirected on intoxication - whether trial judge unreasonably restrained the appellant's cross-examination rights - CROWN APPEAL - whether offences involved distinct acts of criminality - failure to accumulate sentences found

Criminal Procedure Act 1986 (NSW) Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

Des Rosiers v R [2006] NSWCCA 16 MLP v Regina [2006] NSWCCA 271 Munday v Gill (1930) 44 CLR 38 Pearce v The Queen (1998) 194 CLR 610 R v Howard (1992) 29 NSWLR 242 R v Janceski (2005) 64 NSWLR 10 R v Landy [1943] VLR 73 R v Mills (2005) 154 A Crim R 40 CASES CITED: R v Moffit (1990) 20 NSWLR 114 R v Qutami (2001) 127 A Crim R 369 R v Sepulveda [2003] NSWCCA 131 R v Ta (2003) 57 NSWLR 444 R v Tagaras (NSWCCA, unreported, 9 April 1974) R v Taylor [2003] NSWCCA 194 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 Regina v Stankovic [2006] NSWCCA 229 Veen v The Queen (No 2) (1988) 164 CLR 465