Citation: DL v R [2018] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 21 December 2018
Judge(s): Basten JA at [1]; Schmidt J at [78]; Fagan J at [80]
Background
The appellant was convicted of murder following a jury trial in 2008. He had been under 18 years of age at the time of the offence, which occurred in July 2005. His victim, a schoolgirl referred to as TB, was stabbed 48 times with a knife after alighting from a bus. She died from a stab wound that penetrated her heart. The sentencing judge imposed a non-parole period of 17 years with a further term of 5 years, making a total sentence of 22 years.
The original sentence was set against a statutory standard non-parole period of 25 years for murders involving a victim under 18. The sentencing judge gave that standard non-parole period primary significance, an approach later rejected by the High Court in Muldrock v The Queen (2011). After the appellant sought leave to appeal in 2016, the prosecution conceded the sentencing judge had applied an erroneous approach.
On first resentencing in 2017, a majority of the Court of Criminal Appeal dismissed the appeal, finding no lesser sentence was warranted in law. The High Court then upheld a further appeal, set aside that dismissal, and remitted the matter for redetermination. This judgment is the Court of Criminal Appeal's decision on remittal.
Legal Issues
- What law governs resentencing on remittal, given a legislative amendment had since removed the standard non-parole period for offenders under 18 at the time of the offence?
- Whether the prosecution's withdrawal of its earlier concession that the sentence required "adjustment" affected the resentencing exercise.
- What weight, if any, should be given to the sentencing judge's original findings and approach when resentencing?
- What weight should comparable cases and Judicial Commission statistics carry in the resentencing exercise?
- Whether a lesser sentence was warranted in law, taking into account the objective seriousness of the offence, the appellant's mental state, his age, his lack of acceptance of responsibility, and his difficult experience of custody.
Decision
The Court determined that resentencing should proceed under the law as it stood at the time of resentencing, including the legislative amendment that removed the standard non-parole period for offenders who were under 18 at the time of the offence. That amendment was favourable to the appellant and applied to him by the terms of the transitional provisions.
The Court addressed the prosecution's withdrawal of its earlier concession that the sentence required "adjustment." Basten JA held that the withdrawal did not alter the scope of the resentencing task. Once the Court was required to resentence, it had to arrive at the appropriate sentence on all the material before it, regardless of the positions the parties had previously taken.
On the objective circumstances, the Court accepted that the offending was serious. The attack was ferocious and involved 48 stab wounds. However, the Court found it was not accompanied by elements of sadistic cruelty, and the precise mental state of the appellant at the time of the offence was difficult to establish. The psychiatric evidence indicated the appellant suffered from some form of mental disability, including probable depressive, anxiety, and obsessive-compulsive symptoms, and there was material suggesting a deterioration in his functioning in the period before the offence.
After weighing the objective seriousness of the offence, the absence of clear premeditation as a proven fact, the appellant's age, his mental condition, the absence of acceptance of responsibility, and the particularly difficult experience he had endured in custody, Basten JA concluded that a lesser sentence was warranted in law. The Court imposed a revised sentence, reducing the non-parole period.
Orders Made
No orders were made in this decision.
Key Takeaways
- On resentencing following remittal, the Court of Criminal Appeal applies the law as it stands at the time of resentencing, including legislative amendments that are favourable to the offender.
- The withdrawal by a prosecutor of an earlier concession that a sentence required "adjustment" does not constrain the resentencing court's task; the court must still arrive at the appropriate sentence on all available material.
- Where a sentencing judge's original approach contained error (here, giving primary weight to a standard non-parole period in a manner rejected by Muldrock), the Court of Criminal Appeal on resentencing is not bound by the original judge's factual findings or reasoning, though it may have regard to them.
- Comparable cases and Judicial Commission statistics serve as a cross-check on the appropriateness of a sentence rather than as determinative benchmarks; the Court of Criminal Appeal confirmed that each case must be assessed on its own facts.
- A juvenile offender's mental disability, youth, and particularly difficult experience of custody are all relevant mitigating factors in a murder sentencing exercise, even where the objective seriousness of the offending is high and the offender has not accepted responsibility.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3), s 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54D; Sch 2, cll 45, 57, 60
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- DL v The Queen [2018] HCA 32
- DL v R (No 2) [2017] NSWCCA 58
- Kentwell v The Queen (2014) 252 CLR 601
- Betts v The Queen (2016) 258 CLR 420
- Hili v The Queen (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Fox v Percy (2003) 214 CLR 118
- Douar v R [2005] NSWCCA 455
- Baxter v R [2007] NSWCCA 237
- Crump v R [2016] NSWCCA 2
- R v Hughes [2018] 2 Qd R 134
- R v Pishdari [2018] SASCFC 94
- R v MJR (2002) 54 NSWLR 368
- R v GDP (1991) 53 A Crim R 112
- R v Hearne (2001) 124 A Crim R 451