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Dawson v The Queen

Dawson v The Queen

Case [2021] NSWCCA 53 31 March 2021

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dawson v R [2021] NSWCCA 53
Hearing dates: 23 September 2020
Decision date: 31 March 2021
Before: Hoeben CJ at CL at [1];
Rothman J at [76];
Bellew J at [84]
Decision:
(1) In relation to Grounds of Appeal 1A and 1B, refuse leave to the applicant to rely on those grounds.
(2) In relation to Ground of Appeal 2, grant leave to appeal but dismiss the appeal.

Catchwords:
CRIMINAL LAW – sentence appeal – applicant pleaded guilty to two offences of aggravated break enter and commit serious indictable offence contrary to s 112(2) of the Crime Act 1900 (NSW) – co-offender convicted of one offence of aggravated break enter and commit serious indictable offence – whether error in sentencing judge not referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 when that case had not been brought to her attention in the sentence hearing – Bugmy v The Queen considerations did not arise – whether the applicant’s sentence should be reduced for parity reasons – no justified sense of grievance – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) – ss 60, 61, 112, 546C
Criminal Appeal Act 1912 (NSW) – s 5
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 13
Criminal Procedure Act 1986 (NSW) – s 166
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 10, 21A

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Huckstadt v R [2016] NSWCCA 22
Kliendienst v R [2020] NSWCCA 98
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
McDowall v R [2019] NSWCCA 29
Palijan v R [2010] NSWCCA 142
R v Fernando (1992) 76 A Crim R 58
R v Maher [2004] NSWCCA 177
R v Tisalandis [1982] 2 NSWLR 430
Youkhana v R [2011] NSWCCA 37;

Category: Principal judgment
Parties: Nathan James Dawson – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G Lewer – Applicant
K Jeffreys – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2019/69008
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20/9/2019

Before:

Harris DCJ

File Number(s):

2019/69008

JUDGMENT

HOEBEN CJ at CL: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 20 September 2019 by her Honour Judge Harris (the sentencing judge) sitting in the District Court at Parramatta.
The applicant entered pleas of guilty on 10 July 2019 in the Local Court at Wollongong to two offences of aggravated break, enter and commit a serious indictable offence (intimidation), contrary to s 112(2) of the Crimes Act 1900 (NSW) (sequences 1 and 2). For each offence the maximum penalty…

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 The Queen

Details

AGLC: Dawson v The Queen [2021] NSWCCA 53
Case: [2021] NSWCCA 53
Decision Date: 31 March 2021

CaseChat Overview and Summary

The applicant in this case, Dawson, appealed against his sentence after pleading guilty to two counts of aggravated break and enter and commit a serious indictable offence under section 112(2) of the Crime Act 1900 (NSW). The applicant's co-offender had been convicted of one count of the same offence. The appeal was heard in the High Court of Australia. The primary legal issue for the court to decide was whether there was an error in the sentencing judge's decision not to refer to the case of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 during the sentence hearing. The court also needed to determine if the applicant's sentence should be reduced for parity reasons, considering the co-offender's sentence, and whether there was a justified sense of grievance.

The court found that there was no error in the sentencing judge's decision as the considerations from the Bugmy case did not arise in the present case. The sentencing judge was not obligated to refer to the Bugmy case as it had not been brought to her attention during the sentence hearing. Furthermore, the court held that the applicant's sentence should not be reduced for parity reasons as there was no justified sense of grievance. The applicant's offending was more serious than that of his co-offender, and the sentence reflected this difference. The appeal was ultimately dismissed.

No further orders were made by the court in this matter.

Orders