DS v Regina [2012] NSWCCA 159

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DS v Regina [2012] NSWCCA 159 Hearing dates: 30 March 2012 Decision date: 26 July 2012 Before: Beazley JA; Harrison J; McCallum J Decision: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence; 3. Appeal against sentence allowed; 4. Confirm the sentences imposed in respect of counts 1 and 2; 5. Quash the sentences imposed in respect of counts 3 and 5; 6. Re-sentence the appellant in respect of counts 3 and 5 in the manner specified below, so that the sentences imposed on the appellant, including those imposed for counts 1 and 2, are as follows: Count 2: A fixed term of 2 years to commence on 20 May 2009 and to expire on 19 May 2011; Count 1: A fixed term of 2 years 6 months to commence on 20 November 2009 and to expire on 19 May 2012; Count 3: A non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014; Count 5: A non-parole period of 6 years 9 months to commence on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022; 7. Note that the earliest date on which the appellant is eligible for release is 19 February 2019. Catchwords: CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial was held according to law - Whether trial a nullity - Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) - Appellant not arraigned again after empanelment of jury - No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2).