AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 6 September 2024

Du Plessis v R

[2024] NSWCCA 164

Sexual offences

Citation: Du Plessis v R [2024] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 6 September 2024
Judges: N Adams J; Ierace J; Sweeney J

Background

The applicant, a man aged 47 at the time of the offences, was convicted at trial of two counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation in each count was that the complainant was under 16 years of age, as provided by s 61J(2)(d). She was 15 years and nine months old at the time.

The offences occurred in the early hours of the morning at a beach near Lennox Head. The complainant, who was stranded and distressed after a planned meeting fell through, had accompanied the applicant and others to a nearby house to charge her phone. The applicant subsequently led her to the beach, where he sexually assaulted her. She was then further assaulted by another man upon returning to the house.

The applicant was acquitted of a count of aggravated indecent assault (count 1) but convicted on counts 2 and 3. He was sentenced in the District Court on 14 April 2023 to an aggregate term of 11 years and 6 months imprisonment, with a non-parole period of 8 years. The appeal was brought out of time, requiring the applicant to also seek an extension.

  • Whether the sentencing judge erred in treating the complainant's vulnerability as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), when the complainant's age was already an element of the offences
  • Whether the aggregate sentence of 11 years and 6 months was manifestly excessive

Decision

On Ground 1, the Court of Criminal Appeal dismissed the challenge. The applicant argued that treating the complainant's vulnerability as a separate aggravating factor amounted to double-counting, because her age was already the statutory circumstance of aggravation embedded in the offence. The Court acknowledged this principle but found that the sentencing judge had not simply relied on age alone when treating vulnerability as an aggravating feature. The complainant's particular circumstances at the time of the offences, including that she was alone, distressed, and stranded late at night, supported a vulnerability finding independent of her age.

On Ground 2, the Court found that the aggregate sentence was manifestly excessive. Without detailing every aspect of its reasoning (portions of the judgment were omitted from the available text), the Court indicated that comparative cases, while not the primary basis for its conclusion, confirmed that the sentence was unreasonably high. The Court noted that the error was established on the material before it and that resentencing was therefore appropriate.

On resentencing, the Court adopted the sentencing judge's factual findings in their entirety, including the finding of special circumstances. The Court reduced the aggregate sentence by 18 months, arriving at a term that it considered properly reflected the purposes of punishment, denunciation, and general deterrence.

Orders Made

  • Leave granted to file notice of appeal out of time
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 14 April 2023 quashed
  • Applicant resentenced to an aggregate term of 10 years imprisonment, commencing 8 December 2022 and expiring 7 December 2032, with a non-parole period of 7 years expiring 7 December 2029 (indicative sentences: count 2, 6 years with a non-parole period of 4 years 3 months; count 3, 8 years with a non-parole period of 6 years)

Key Takeaways

  • A sentencing court does not automatically commit double-counting error by treating a complainant's vulnerability as an aggravating factor simply because the complainant's age is already an element of the offence. The vulnerability finding must be grounded in circumstances beyond age alone, such as the complainant being isolated, distressed, and in a position of dependence at the time of the offending.

  • The Court of Criminal Appeal confirmed that comparative sentencing decisions are not themselves the basis for a finding of manifest excess, but may be consulted by way of confirmation and demonstration once the error has been independently established.

  • Where a sentence appeal succeeds on manifest excess grounds, the appellate court resentences afresh and may adopt the original sentencing judge's factual findings where those findings were not separately challenged.

  • In dismissing Ground 1, the Court reinforced that the prohibition on double-counting under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not engaged simply because an aggravating circumstance overlaps with a statutory element of the offence; the relevant question is whether the sentencing judge has treated the same feature twice as a separate aggravating consideration.

  • The aggregate sentence was reduced by 18 months, from 11 years 6 months to 10 years, with the non-parole period reduced from 8 years to 7 years, maintaining a ratio of 70 per cent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61J(2)(d), 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A
- Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2006 (NSW)
- Rural Crime Legislation Amendment Act 2017 (NSW)

Cases:
- Ali v R [2010] NSWCCA 35
- Archer v R [2017] NSWCCA 151
- Christie v R [2012] NSWCCA 228
- Conte v R [2018] NSWCCA 209
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DL v R [2020] NSWCCA 164
- Drew v The Queen (2016) 264 A Crim R 1; [2016] NSWCCA 310
- He v Sun [2021] NSWCA 95
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Katsis v R [2018] NSWCCA 9
- Longworth v The Queen (2017) 266 A Crim R 551; [2017] NSWCCA 119
- Martin v R [2016] NSWCCA 273
- Morrison v R [2022] NSWCCA 158
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Brown [2012] NSWCCA 199
- R v Williams [2005] NSWCCA 99
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36