DL v R [2018] NSWCCA 302

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DL v R [2018] NSWCCA 302 Hearing dates: 9 November 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Before: Basten JA at [1]; Schmidt J at [78]; Fagan J at [80] Decision: (1) Allow the appeal and set aside the sentence imposed on 14 November 2008.

(2) Resentence the offender to a non-parole period of 13 years to date from 19 July 2005 with a further term of 5 years, giving a sentence of 18 years imprisonment.

(3) The offender became eligible for parole on 19 July 2018. The sentence will expire on 18 July 2023. Catchwords: SENTENCING – appeals against sentence –law to be applied by court on resentencing – law amended after initial sentencing hearing so that standard non-parole period no longer applied to offender under 18 years of age – amendment favourable to offender – whether offender to be resentenced according to law at time of resentencing – relevance of principles concerning admission of evidence of post-sentence conduct – Criminal Appeal Act 1912 (NSW), s 6(3) – Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)

SENTENCING – appeal against sentence – prosecutor conceded Muldrock error – prosecutor withdrew concession that sentence appealed from required "adjustment" – extent to which regard should be had to sentencing judgment below when resentencing

SENTENCING – appeal against sentence – resentencing – murder –offender under 18 years of age at time of offence – stabbed victim 48 times in chest – no apparent motive for attack –offender suffered some form of mental disability at time of offence –no acceptance of responsibility for offence – particularly difficult experience of prison –whether lesser sentence warranted in law