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Dawson (a pseudonym) v R

Dawson (a pseudonym) v R

Case [2021] NSWCCA 33 10 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dawson (a pseudonym) v R [2021] NSWCCA 33
Hearing dates: 23 November 2020
Date of orders: 10 March 2021
Decision date: 10 March 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [2];
Wright J at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal against sentence –Whether aggregate sentence manifestly excessive – Aggregate sentence not manifestly excessive in the circumstances
CRIMINAL LAW – Sentence – Appeal against sentence – Parity – Whether applicant had justifiable sense of grievance by reason of marked disparity between the differences in length and mode of service of the sentences imposed upon him and his co-offender – Where applicant and co-offender were only co-offenders for one count among a collection of other offences – Objective and subjective features relevant to the applicant were different from those of the co-offender – No justifiable sense of grievance – Appeal dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Atai v R [2020] NSWCCA 302
Chamon v R [2020] NSWCCA 112
Charbaji v R [2019] NSWCCA 28
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hughes v R [2018] NSWCCA 2
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Remington v R [2018] NSWCCA 98
Rizk v R [2020] NSWCCA 291
R v Ball [2013] NSWCCA 126
R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243; 227 A Crim R 251.
Sheather v R [2020] NSWCCA 162

Category: Principal judgment
Parties: Dawson (a pseudonym) (Applicant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Applicant)
B Hatfield (Crown)
Solicitors:
Australian Criminal Law Group (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/0093674
Publication restriction: Note: non-publication order made by the District Court in relation to part of the remarks on sentence
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 April 2020

Before:

Herbert DCJ

File Number(s):

2016/249610; 2018/93674; 2018/271027

Judgment

HOEBEN CJ at CL: I agree with Wright J and the orders which he proposes.
BELLEW J: I agree with Wright J and the orders that he proposes.
WRIGHT J: The applicant, Mr Dawson (a pseudonym), seeks leave to appeal against an aggregate sentence imposed on him on 14 April 2020 by Herbert DCJ in the District Court at Parramatta.

Background

On 18 December 2019, the applicant pleaded guilty in the Local Court at Campbelltown to supplying not less than the commercial quantity of a prohibited drug, knowingly taking part in the supply of not…

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 Dawson (a pseudonym) v R

Details

AGLC: Dawson (a pseudonym) v R [2021] NSWCCA 33
Case: [2021] NSWCCA 33
Decision Date: 10 March 2021

CaseChat Overview and Summary

In the case of Dawson v The Queen, the appellant, Dawson, sought to appeal against the sentence imposed upon him by the lower court, arguing that the aggregate sentence was manifestly excessive and that there was a marked disparity in the length and mode of service of the sentences imposed upon him and his co-offender. The appeal was heard by the High Court of Australia. The central issue in this appeal was whether the aggregate sentence was manifestly excessive and whether there was a justifiable sense of grievance by reason of the marked disparity in the sentences imposed upon the appellant and his co-offender.

The Court examined the objective and subjective features of the case to determine whether the aggregate sentence was manifestly excessive. The Court noted that the appellant and his co-offender were only co-offenders for one count among a collection of other offences. The Court found that the objective and subjective features relevant to the appellant were different from those of the co-offender, and therefore, there was no basis for finding that the aggregate sentence was manifestly excessive. In relation to the disparity in sentences, the Court held that there was no justifiable sense of grievance, as the appellant and his co-offender were only co-offenders for one count, and the differences in their sentences were due to the different objective and subjective features of their respective cases.

The Court dismissed the appeal, holding that the aggregate sentence was not manifestly excessive and that there was no justifiable sense of grievance by reason of the marked disparity in the sentences imposed upon the appellant and his co-offender. The Court found that the lower court had appropriately considered the relevant factors in determining the sentences, and that there was no error in the sentencing process. The appeal was therefore dismissed, and the original sentence was upheld.

Orders