Dawson v The Queen

Case [2019] ACTCA 9


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Dawson v The Queen

Citation:

[2019] ACTCA 9

Hearing Date:

7 May 2019

DecisionDate:

7 May 2019

Before:

Murrell CJ, Loukas-Karlsson and Bromwich JJ

Decision:

Appeal allowed.

Appellant resentenced to a total period of 5 years and 5 months’ imprisonment with a non-parole period of 3 years.

Catchwords:

APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – Where the appellant was sentenced for two sets of offences – Degree of concurrency – Whether the sentencing judge failed to properly consider totality – Appellant resentenced

Legislation Cited:

Crimes (Sentence Procedure) Act 1999 (NSW) s 11

Crimes(Sentencing) Act 2005 (ACT) ss 33(1)(za), 35

Cases Cited:

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Dalton v The Queen [2015] ACTCA 48
Fusimalohi v The Queen [2012] ACTCA 49
Henry v The Queen [2019] ACTCA 5
Hili v The Queen [2010] HCA 45; 242 CLR 520
Millard v The Queen [2016] ACTCA 14
O’Brien v The Queen [2015] ACTCA 47
R v Dawson [2018] ACTSC 238
R v Lockwood [2018] ACTSC 288

R v McMahon [2014] ACTSC 280

Parties:

Bradley Caine Anthony Dawson (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr A Doig (Appellant)

Mr M Fernandez (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 33 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Burns J

Date of Decision:         25 May 2018

Case Title:  R v Dawson

Citation: [2018] ACTSC 238

The Court

The Appeal

  1. On 25 May 2018, the sentencing judge sentenced the offender for 10 offences to an effective sentence of six years and seven months’ imprisonment with a non-parole period of four years (60.8%): R v Dawson [2018] ACTSC 238 (R v Dawson).  The offences related to two days: 10 December 2017 and 14 December 2017.

  1. The Appellant appealed on the ground that the aggregate sentence and related non-parole period were manifestly excessive.

  1. The individual sentences that were imposed were as follows:

Offences on 10 December 2017

1)       CC18/2078 – burglary – 28 months’ imprisonment discounted from 37 months, from 14 December 2017 to 13 April 2020;

2)       CC18/2093 – theft – 24 months’ imprisonment discounted from 32 months, from 14 June 2019 to 13 June 2021;

3)       CC18/2080 – take motor vehicle – 6 months’ imprisonment discounted from 8 months, from 14 March 2021 to 13 September 2021;

Offences on 14 December 2017

4)       CC17/13721 – burglary – 29 months’ imprisonment discounted from 36 months, from 14 June 2021 to 13 November 2023;

5)       CC17/13722 – theft – 14 months’ imprisonment discounted from 17 months, from 14 March 2023 to 13 May 2024;

6)       CC17/13723 – theft – 9 months’ imprisonment discounted from 11 months, from 14 October 2023 to 13 July 2024;

7)       CC17/13725 – escape custody – 1 month’s imprisonment, from 14 June 2024 to 13 July 2024;

8)       CC18/586 – unlawful possession of stolen property – 1 month’s imprisonment,…

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AGLC
Dawson v The Queen [2019] ACTCA 9
Case
[2019] ACTCA 9
Decision Date

CaseChat Overview and Summary

Dawson appealed against a sentence imposed by a sentencing judge in the District Court of New South Wales. The appellant had been convicted of two sets of offences and sentenced to a total term of imprisonment. The appeal concerned the degree of concurrency between the sentences for these two sets of offences and whether the sentencing judge had adequately considered the totality of the sentence.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive, specifically in relation to the consideration of the totality principle. This involved an assessment of whether the judge had properly accounted for the combined impact of the sentences for the separate sets of offences when determining the overall length of imprisonment and the non-parole period.

The Court of Appeal found that the sentencing judge had failed to properly consider the totality of the sentence. The court applied the totality principle, which requires a sentencing judge to consider the overall impact of multiple sentences imposed on an offender. By failing to give sufficient weight to this principle, the original sentence was deemed to be manifestly excessive. Consequently, the appeal was allowed, and the appellant was resentenced to a total period of 5 years and 5 months’ imprisonment, with a non-parole period of 3 years.

Orders

Orders of the court

Appeal allowed.

Appellant resentenced to a total period of 5 years and 5 months’ imprisonment with a non-parole period of 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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