DG v R [2017] NSWCCA 139

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DG v R [2017] NSWCCA 139 Hearing dates: 2 June 2017 Date of orders: 21 June 2017 Decision date: 21 June 2017 Before: Hoeben CJ at CL at [1 ]; Garling J at [75]; Bellew J at [76] Decision: (1) Leave to appeal against sentence is granted. (2) The appeal against sentence is allowed. (3) The aggregate sentence imposed by Buscombe DCJ on 24 March 2016 is quashed. (4) In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 April 2015 and expiring 1 April 2025, with a balance of term of 5 years expiring 1 April 2030. Catchwords: CRIMINAL LAW – sentence appeal – counts of aggravated indecent assault and aggravated sexual assault with two aggravated sexual intercourse offences on a Form 1 – aggregate sentence of imprisonment for 15 years with a non-parole period of 11 years – whether proper effect given to a finding of special circumstances – whether error in an indicative sentence required a change to the aggregate sentence – offences serious involving offending for 4½ years – failure to adequately reflect finding of special circumstances in sentence – no error in indicative sentences – appeal allowed – need to resentence. Legislation Cited: Crimes Act 1900 (NSW) – ss 61J, 61M, 66C Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 32, 33, 44, 53A Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 CM v R [2013] NSWCCA 341 Fayad v R [2017] NSWCCA 81 MD v R [2015] NSWCCA 37 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v DG (District Court (NSW), Buscombe DCJ, 24 March 2016, unrep) R v Nykolyn [2012] NSWCCA 219 Sabongi v R [2015] NSWCCA 25 Category: Principal judgment Parties: DG – Applicant Regina – Respondent Crown Representation: Counsel: D Kell SC/M Pulsford – Applicant D Carroll/PD Swaine – Respondent Crown