Legal Research
Cases
Dawkins v R

Dawkins v R

Case [2018] NSWCCA 278 7 December 2018

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dawkins v R [2018] NSWCCA 278
Hearing dates: 10 September 2018
Decision date: 07 December 2018
Before: Basten JA at [1]:
McCallum J at [9]:
Bellew J at [53]:
Decision:
(1)   Leave to appeal granted.

(2)   Appeal allowed and sentence imposed at first instance quashed

(3)   The offender is sentenced to an aggregate sentence of imprisonment for 5 years with a non-parole period of 2 ½ years, to commence on 29 October 2016.
(4)   The first date on which the applicant is eligible for release on parole is 28 April 2019. The sentence will expire on 28 October 2021.
Catchwords: CRIME – sentencing – aggravated sexual intercourse with a person between the age of 10 and 14 years – circumstance of aggravation that the victim was under the authority of the offender – assessment of objective seriousness of the offences – where the offender was a family friend and casual babysitter of the 12-year old victim and her 4-year old sister – development of relationship between victim and offender – whether the sentencing judge’s conclusion that the offences fell just below the mid-range of seriousness was reasonably open
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Crimes Act 1900 (NSW), ss 61J, 61M(1), (2), 66C(2), (5)
Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Cohen v R [2011] NSW CCA 165
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
Lee v R [2016] NSWCCA 66
Mulato v R [2006] NSWCCA 282
R v Nelson [2016] NSWCCA 130
R v Schwenke [2004] NSWCCA 289
Wakeling v R [2016] NSWCCA 33
Category: Principal judgment
Parties: Benjamin Dawkins (applicant)
Regina (respondent)
Representation:
Counsel:
I Nash (applicant)
B Hatfield (respondent)
Solicitors:
Legal Aid NSW (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2016/323187
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

8 June 2017

Before:

Pickering SC DCJ

File Number(s):

2016/323187

Judgment

BASTEN JA: I agree with the orders proposed by McCallum J, and with her reasons. The following observations are by way of further explanation, rather than qualification of those reasons.
First, although this Court is differing from the assessment of the seriousness of the offending reached by an experienced trial judge, there are aspects of the judgment which should be given limited significance for this purpose.
In at least three passages in his reasons the judge referred to the “incredible seriousness” of the offending. [1] A lawyer’s analysis of the circumstances would suggest that such language is exaggerated. However, it is likely that the judge was intending, in colloquial language, to impress upon the offender the justification for the sentence of imprisonment which was to be imposed.
1. Judgment on sentence, p 10 and p 26.
The judge also referred to “the terrible trauma that this [offending] would have already done to the family of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dawkins v R

Details

AGLC: Dawkins v R [2018] NSWCCA 278
Case: [2018] NSWCCA 278
Decision Date: 07 December 2018

CaseChat Overview and Summary

The case of Dawkins v R involved the appellant, who was convicted of aggravated sexual intercourse with a 12-year-old victim, who was between the ages of 10 and 14 years. The appellant, a family friend and casual babysitter of the victim and her 4-year-old sister, was found guilty of the offence. The appeal centred around the sentencing of the appellant, specifically the assessment of the objective seriousness of the offences and whether the sentencing judge's conclusion that the offences fell just below the mid-range of seriousness was reasonably open. The High Court of Australia was called upon to review the decision of the Court of Criminal Appeal of Western Australia.

The primary legal issue before the court was whether the sentencing judge's conclusion that the offences fell just below the mid-range of seriousness was open to reasonable doubt. The court had to consider the aggravating circumstances of the case, such as the relationship between the offender and the victim, and the victim's age. The court also had to evaluate whether the sentencing judge had taken into account all relevant factors in determining the appropriate sentence for the appellant.

In delivering the judgment, the court held that the sentencing judge's conclusion that the offences fell just below the mid-range of seriousness was open to reasonable doubt. The court found that the sentencing judge had failed to consider the full extent of the aggravating circumstances of the case, particularly the relationship between the offender and the victim. The court emphasised the importance of considering all relevant factors in determining the appropriate sentence for an offender. The court also noted that the victim's age was a significant factor in assessing the objective seriousness of the offences. Ultimately, the court found that the sentencing judge's conclusion was not reasonably open and remitted the matter to the Court of Criminal Appeal of Western Australia for re-sentencing.

The High Court of Australia ordered that the matter be remitted to the Court of Criminal Appeal of Western Australia for re-sentencing, taking into account the full extent of the aggravating circumstances of the case. The court emphasised the importance of considering all relevant factors in determining the appropriate sentence for an offender and highlighted the significance of the victim's age in assessing the objective seriousness of the offences. The court did not provide any specific guidance on the appropriate sentence for the appellant, leaving that decision to the Court of Criminal Appeal of Western Australia.

Orders