DM v R [2018] NSWCCA 305

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DM v R [2018] NSWCCA 305 Hearing dates: 16 November 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Before: Simpson AJA at [1] Johnson J at [2] N Adams J at [3] Decision: (1) Leave to appeal is granted.

(2) The appeal is allowed and the sentence imposed at first instance is quashed.

(3) The offender is sentenced to a sentence of imprisonment for four years and six months with a non-parole period of two years and five months, to commence on 27 July 2016.

(4) The first date on which the applicant is eligible for release on parole is 26 December 2018. The sentence will expire on 26 January 2021. Catchwords: CRIMINAL LAW – sentence appeal – parity - where the applicant was sentenced with respect to one count of sexual intercourse with a child aged 15 while in company contrary to s 66C(4) of the Crimes Act 1900 (NSW) – where an additional offence contrary to s 66C(4) was taken into account on a Form 1 – whether sentencing judge made a material factual error in finding the applicant was in a position of leadership in relation to the offending conduct – whether the applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 33 Crimes Act 1900 (NSW), ss 61J, 66C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54D Criminal Appeal Act 1912 (NSW), s 5 Cases Cited: Ayik v R [2013] NSWCCA 119 Dayment v R [2018] NSWCCA 132 DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 Kelly v R [2017] NSWCCA 256 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51 Lloyd v R [2017] NSWCCA 303 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Mulato v R [2006] NSWCCA 282 R v KB [2011] NSWCCA 190 R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 Rainbow v R [2018] NSWCCA 42 Simpson v R [2014] NSWCCA 23 Usher v R [2016] NSWCCA 276 Wakeling v R [2016] NSWCCA 33 Category: Principal judgment Parties: DM (Applicant) Regina (Respondent) Representation: Counsel: Mr D Carroll (Applicant) Ms C Curtis (Respondent)