Dean v R

Case [2020] NSWCCA 317 8 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dean v R [2020] NSWCCA 317
Hearing dates: 18 November 2020
Date of orders: 8 December 2020
Decision date: 08 December 2020
Before: Hoeben CJ at CL; Price J; Fagan J
Decision:
1   Leave to appeal is granted.
2 The appeal against conviction on offence 6 (not keep a firearm safely, contrary to s 39(1)(a) of the Firearms Act 1996 (NSW)) is upheld and the conviction is quashed.
3   The appeal against sentence in respect of offences 1-5 inclusive, 7, A, B, D and E is upheld and the sentences imposed on 13 February 2020 are quashed.
4   In lieu thereof the applicant is sentenced as follows:
(a) in respect of offence 2 (use a carriage service to threaten to kill, contrary to s 474.15(1) of the Criminal Code (Cth)) – to a term of imprisonment of 3 years commencing on 12 July 2015 and expiring on 11 July 2018;
(b) in respect of offences 1, 3, 4, 5, 7, A, B, D and E – to an aggregate sentence of 6 years commencing on 12 July 2016 and expiring on 11 July 2022 with a non-parole period of 3 years and 8 months expiring on 11 March 2020. The applicant has been eligible for release on parole from 11 March 2020

Catchwords:
CRIMINAL LAW – appeal against sentence – possession of firearm with intent to intimidate – possession and discharge of firearm in a public place and while under the influence of alcohol – offer of plea to lesser charge – applicant found not guilty of more serious charge – applicant entitled to 25% discount – leave to appeal granted – applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Domestic and Personal) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Lehn v R [2016] NSWCCA 255
R v Cardoso [2003] NSWCCA 15
R v Oinonen [1999] NSWCCA 310
R v Pennisi [2001] NSWCCA 326

Category: Principal judgment
Parties: Dean (applicant)
Regina (respondent)
Representation:
Counsel:
J Paingakulam (applicant)
M Millward (respondent)
Solicitors:
Legal Aid NSW (applicant)
The Solicitor for the Director of Public Prosecutions (respondent)

File Number(s): 2015/204183 and 2016/18847
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 11

Date of Decision:

13 February 2020

Before:

Abadee DCJ

File Number(s):

2015/204183 and 2016/18847

Judgment

1. THE COURT: This is an application for leave to appeal against sentences fixed by Abadee DCJ in the District Court on 13 February 2020 in respect of seven offences prosecuted on indictment and five related offences specified on a certificate under s 168(1)(b) of the Criminal Procedure Act 1986 (NSW). The offences were all committed within the space of about 4½ hours in the late afternoon and evening of 12 July 2015. The applicant had been separated from his former partner,…

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 Dean v R

Details

AGLC: Dean v The Queen [2020] NSWCCA 317
Case: [2020] NSWCCA 317
Decision Date: 08 December 2020

CaseChat Overview and Summary

The appellant, Dean, was convicted of possession of a firearm with intent to intimidate, possession and discharge of a firearm in a public place, and possession of a firearm while under the influence of alcohol. The appellant appealed against the sentence, arguing that he was entitled to a 25% discount on the sentence due to his acceptance of a plea to a lesser charge. The matter was heard in the Court of Criminal Appeal in Australia. The legal issue before the court was whether the appellant was entitled to a discount on his sentence for entering into a plea agreement.

The court held that the appellant was entitled to a discount on his sentence as he had entered into a plea agreement. The court noted that the appellant had initially been charged with a more serious offence but was found not guilty of that charge. The court found that the appellant had accepted responsibility for his actions and had entered into a plea agreement, which entitled him to a discount on his sentence. The court also noted that the appellant had shown remorse for his actions and had a clean criminal record. The court granted the appellant leave to appeal against his sentence and resentenced him accordingly.

The court ordered that the appellant be resentenced to a term of imprisonment of five years, with a non-parole period of three years and three months. The court also ordered that the appellant be subject to a good behaviour bond for a period of five years following his release from prison. The court noted that the discount on the sentence was appropriate given the appellant's acceptance of responsibility and his plea agreement. The court also noted that the sentence was proportionate to the seriousness of the offences committed by the appellant.

Orders