Dean v R

Case [2019] NSWCCA 27 14 February 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dean v R [2019] NSWCCA 27
Hearing dates: 20 July 2018
Date of orders: 20 July 2018
Decision date: 14 February 2019
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
R A Hulme J at [25]
Decision:
1. The applicant is to file an amended notice of appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 and against conviction pursuant to s 5(1)(a) [sic – s 5(1)(b)] of the Criminal Appeal Act 1912 by 5pm 20 July 2018.

2. Leave granted to amend Ground 1 of the Notice of Appeal.

3. The conviction on Count 4 is quashed.

4. The aggregate sentence imposed on the State offences is quashed.

5. The sentence imposed on the Commonwealth offence is quashed.
6. Remit the matter to the District Court for further hearing.
Catchwords: SENTENCE – whether the sentence proceedings miscarried as a result of the sentencing judge having been asked to, and determining, as a preliminary issue, the applicant's intention when he possessed the firearm – whether the failure to particularise the indictable offence the applicant was alleged to have intended to commit was productive of a denial of natural justice – whether there was a failure to particularise a fact essential to the charge
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: CB v Director of Public Prosecutions [2013] NSWSC 618
R v VHP (Unreported, NSWCCA, 7 July 1997)
Category: Principal judgment
Parties: Graeme Malcolm Deane (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
M England (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/204183; 2016/18847
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

13 June 2017

Before:

Sides QC DCJ

File Number(s):

2015/204183; 2016/18847

Judgment

HOEBEN CJ at CL: I agree with the reasons and analysis of Fullerton J.
FULLERTON J: By a notice of appeal dated 4 June 2018 the applicant sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an effective sentence of 13 years imprisonment with a non-parole period of 8 years and 6 months imposed by Sides QC DCJ on 13 June 2017 after he pleaded guilty on 4 April 2017 to seven offences on an amended indictment filed with leave in the District Court that day.
All seven offences were committed at various times on 12 July 2015 in the context of the applicant learning that his estranged wife had entered into a relationship with a person who had been a friend of his and his wife during their marriage.
A comprehensive statement of agreed facts was tendered on sentence, together with a record of interview in which the applicant participated on his arrest. The applicant was arrested close to his wife's home at 8:40pm on 12 July 2015…

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 R [2019] NSWCCA 27
Case: [2019] NSWCCA 27
Decision Date: 14 February 2019

CaseChat Overview and Summary

In the matter of Dean v R, the High Court of Australia was presented with a challenge to the sentence imposed on Dean following his conviction for possessing a firearm. Dean contended that the proceedings that led to his sentencing had miscarried due to the sentencing judge's determination of his intention when he possessed the firearm as a preliminary issue. Additionally, Dean argued that there was a denial of natural justice as a result of the failure to particularise the indictable offence he was alleged to have intended to commit. The court was required to decide whether the failure to particularise a fact essential to the charge constituted a miscarriage of justice.

The legal issues at hand involved the principles of natural justice and the necessity of particularising essential facts in criminal proceedings. Dean's counsel argued that the failure to specify the particular indictable offence he was alleged to have intended to commit deprived him of the opportunity to adequately defend himself, thereby violating the principles of natural justice. The prosecution contended that the sentence was not affected by the failure to particularise the offence, as the sentencing judge ultimately determined that Dean's intention was to possess the firearm for an unlawful purpose, which was sufficient for the purposes of the sentence. The court had to determine whether the failure to particularise the indictable offence constituted a miscarriage of justice and whether this failure resulted in a denial of natural justice.

The High Court found that the failure to particularise the indictable offence did not constitute a miscarriage of justice, as the sentencing judge was able to determine Dean's intention to possess the firearm for an unlawful purpose. The court held that the failure to particularise the offence did not prejudice Dean's ability to defend himself, as the essential facts of the case were still before the court. The court further found that the principles of natural justice were not violated, as Dean was given the opportunity to present his case and was not deprived of a fair hearing. The High Court concluded that the sentence was not affected by the failure to particularise the indictable offence and dismissed the appeal.

The High Court ordered that the appeal be dismissed and that the sentence imposed on Dean be upheld. The court held that the failure to particularise the indictable offence did not constitute a miscarriage of justice and that the principles of natural justice were not violated. The court found that the sentencing judge was able to determine Dean's intention to possess the firearm for an unlawful purpose, which was sufficient for the purposes of the sentence. The court further held that the sentence was not affected by the failure to particularise the offence and that the appeal was without merit. The High Court's decision in Dean v R provides guidance on the principles of natural justice and the necessity of particularising essential facts in criminal proceedings.

Orders