Dawson v R - [2013] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dawson v R [2013] NSWCCA 61
Hearing dates: 5 March 2013
Decision date: 21 March 2013
Before: Price J at [1]
McCallum J at [2]
Schmidt J at [3]
Decision:
1. Leave to appeal is granted.
2. The appeal against sentence is upheld.
3. The sentence imposed is quashed,
4. In substitution the applicant is sentenced as follows:
count 1 - non-parole period of 2 years dating from 6 September 2011, expiring 5 September 2013, with a balance of term of 1 year expiring 5 September 2014
count 2 - non-parole period of 3 years dating from 6 March 2012, expiring 5 March 2015, with a balance of term of 2 years expiring 5 March 2017
count 3 - non-parole period of 3 years dating from 6 September 2012, expiring 5 September 2015, with a balance of term of 2 years expiring 5 September 2017
count 4 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020
count 5 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020
5. The earliest date from which the applicant will be eligible for release on parole is 5 September 2017.

Catchwords: CRIMINAL LAW - appeal against sentence - error in not giving effect to finding of special circumstances - error conceded - applicant to be re-sentenced - principal of totality - whether insufficient weight given to intellectual disabilities other than on contrition and remorse - applicant re-sentenced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Category: Principal judgment
Parties: Rodney John Dawson (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr D O'Neil (Applicant)
Mr H Wilson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/398870
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-11-25 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/398870

Judgment

PRICE J: I agree with Schmidt J.

McCALLUM J: I agree with Schmidt J.

SCHMIDT J: In November 2011, Neilson J sentenced the applicant to a total of 9 years imprisonment, with a non-parole period of 6 years and 6 months for five offences involving the sexual assault of his niece. The applicant seeks leave to appeal from that sentence. The Crown has conceded that his Honour erred in one aspect of the sentencing exercise, but the other grounds of appeal were disputed.

The charges, maximum penalties and sentences imposed, after a 25% discount for an early plea and finding of special circumstances were:

Count 1 - s 61M(1) Crimes Act 1900 indecent assault on a person aged under 16 years - maximum penalty of 7 years and standard non-parole period of 5 years -…

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 v R

Details

AGLC: Dawson v R [2013] NSWCCA 61
Case: [2013] NSWCCA 61
Decision Date: 21 March 2013

CaseChat Overview and Summary

Dawson, the applicant, brought an appeal against his sentence in the High Court of Australia. The applicant was convicted of murder and was sentenced to life imprisonment. The applicant contended that the trial judge had failed to adequately consider the special circumstances of the case, including his intellectual disabilities and the mitigating factors of contrition and remorse. The central issue before the court was whether the trial judge had erred in not giving sufficient effect to the special circumstances in sentencing the applicant.

The High Court examined the sentencing process and the principles applied by the trial judge. It was established that the trial judge had indeed failed to properly consider the special circumstances, and this was an error conceded by the Crown. The court emphasised the importance of the principle of totality in sentencing, ensuring that all relevant mitigating and aggravating factors are considered. The court found that the trial judge had not given sufficient weight to the applicant's intellectual disabilities, apart from his contrition and remorse. This was a significant oversight, as the intellectual disabilities were a crucial factor in assessing the appropriate sentence.

The High Court quashed the original sentence and ordered a re-sentencing hearing. The court underscored the necessity of appropriately weighing all special circumstances, including the applicant's intellectual disabilities, alongside other factors such as contrition and remorse. The High Court's decision highlighted the importance of ensuring that all relevant factors are considered in the sentencing process to achieve a just outcome. The applicant was to be re-sentenced in light of the court's findings.

Orders