Dean v R

Case [2015] NSWCCA 307 4 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Dean v R [2015] NSWCCA 307
Hearing dates: 7 September 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Before: Ward JA at [1];
Adams J at [158];
R A Hulme J at [159]
Decision:
1. Grant leave to file the amended notice of appeal dated 23 October 2015.
2. Grant leave to appeal.
3. Dismiss the appeal.

Catchwords: CRIMINAL LAW – sentence appeal – 11 counts of murder - 11 life sentences – whether sentencing judge erred in adopting a two-stage approach to sentencing for murder – whether two-stage approach impermissible after Markarian and Muldrock– whether sentencing judge erred in concluding it was not possible adequately to reflect culpability by any lesser penalty than life imprisonment – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 156
Crimes (Sentencing Procedure Act) 1999 (NSW), ss 61, 54, 54B
Cases Cited: Apps v R [2006] NSWCCA 290
Barton v R [2009] NSWCCA 164
Blackwell v R [2011] NSWCCA 93
Boughey v The Queen [1986] HCA 29, (1986) 161 CLR 10
Crabbe v The Queen [1985] HCA 22; (1985) 156 CLR 464
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
El-Zeyat v R [2015] NSWCCA 196
Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Ngo v R [2013] NSWCCA 142; (2013) 233 A Crim R 121
R v Ainsworth (1994) 76 A Crim R 127
R v Baker [2000] NSWCCA 85
R v Dean [2013] NSWSC 1027
R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Holton [2004] NSWCCA 214; (2004) 41 MVR 89
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v Miles [2002] NSWCCA 276
R v Reginald Lyttle (Supreme Court (NSW), Newman J, 6 March 1996, unrep)
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Subramaniam v R [2013] NSWCCA 159
SW v R [2013] NSWCCA 103
Tuivaga v R [2015] NSWCCA 145
Vuni v R [2006] NSWCCA 171
Williams v R [2012] NSWCCA 172
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Roger Kingsley Dean (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC with D Barrow (Applicant)
Ms M Cinque SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2011/00370574
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

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 [2015] NSWCCA 307
Case: [2015] NSWCCA 307
Decision Date: 04 December 2015

CaseChat Overview and Summary

The appellant, Dean, appealed against his sentence of 11 life sentences for 11 counts of murder. The court had to decide whether the sentencing judge erred in adopting a two-stage approach to sentencing for murder, whether such an approach was impermissible after certain decisions, whether the sentencing judge erred in concluding that it was not possible adequately to reflect culpability by any lesser penalty than life imprisonment, and whether the sentence was manifestly excessive. The High Court found that the sentencing judge did not err in adopting a two-stage approach to sentencing for murder, and that such an approach was not impermissible after the decisions in Markarian and Muldrock. The Court also found that the sentencing judge did not err in concluding that it was not possible adequately to reflect culpability by any lesser penalty than life imprisonment, and that the sentence was not manifestly excessive.

The sentencing judge first determined the appropriate non-parole period for each count of murder, and then determined the appropriate sentence for each count of murder. The Court found that this approach was permissible, as it was consistent with the principles set out in Markarian and Muldrock. The Court also found that the sentencing judge had correctly concluded that it was not possible adequately to reflect culpability by any lesser penalty than life imprisonment. The Court rejected the argument that the sentence was manifestly excessive, finding that the sentencing judge had appropriately considered all relevant factors, including the gravity of the offences and the appellant's culpability. The Court concluded that the sentence was not manifestly excessive, and that the appeal should be dismissed.

Orders