Dennis v The King - [2024] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dennis v R [2024] NSWCCA 137
Hearing dates: 29 May 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Before: Harrison CJ at CL at [1]
Garling J at [2]
McNaughton J at [93]
Decision:
See [92]

Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:
Dungay v R [2020] NSWCCA 209
Fayad v R [2017] NSWCCA 81
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Newman (a pseudonym) v R [2019] NSWCCA 157

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Zack Dennis (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
P Hogan (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/71933
Publication restriction: Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 May 2023

Before:

Turnbull SC DCJ

File Number(s):

2021/71933

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 31 August 2022, Zachary Dennis (the applicant) was sentenced to an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 2 months.

The applicant had pleaded guilty to two offences. Count 1 was an offence of aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900. For this offence, the applicant asked the Court to take into account, on a Form 1, an offence of intimidation intending to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. Count 2 was an attempt to commit the offence of aggravated sexual intercourse without consent contrary to s 61J(1) and s 344A(1) of the Crimes Act 1900.

The sentencing judge found that the intimidation offence, which was taken into account on a Form 1, took place at the home of the victim and was proximate to a child, which was considered to be an aggravating feature.

The sentencing judge with the consent of the parties admitted as material on sentence, the juvenile criminal history of the applicant, and made findings favourable to the applicant by reference to that record.

The applicant sought leave to appeal against the sentence imposed upon him by the sentencing judge, and relied upon three grounds of appeal:

Ground 1: the…

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 Dennis v The King

Details

AGLC: Dennis v The King [2024] NSWCCA 137
Case: [2024] NSWCCA 137
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the case of Dennis v The King, the appellant, Dennis, sought leave to appeal against his sentence imposed by the sentencing judge for a Form 1 offence. The central dispute was whether the sentencing judge erred in identifying certain facts as aggravating circumstances and whether the sentencing judge misapplied the law by considering the appellant's criminal history, particularly offences committed during his childhood. The case was heard in the court of appeal, which was tasked with reviewing the decision of the lower court.

The legal issues the court of appeal needed to address were twofold. Firstly, whether the sentencing judge had correctly identified the facts that constituted aggravating circumstances, and secondly, whether the sentencing judge was justified in considering the appellant’s criminal history, including offences committed when the appellant was a child, in determining the appropriate sentence. The court needed to evaluate whether these considerations were in accordance with the law and whether they had any bearing on the sentencing process.

The court of appeal examined the sentencing judge's decision, focusing on the identification of aggravating circumstances and the consideration of the appellant's criminal history. The court found that the sentencing judge had not erred in identifying the facts that constituted the aggravating circumstances, as the evidence supported the judge's findings. However, the court also determined that the sentencing judge had erred in taking into account the appellant's criminal history, particularly offences committed as a child, as this was not permissible under the relevant sentencing provisions. This error in law led to the conclusion that the sentence was not properly imposed. Consequently, the court granted the appellant leave to appeal.

The court ordered that the appeal be allowed and the case be remitted to the sentencing judge for re-sentencing, with specific directions to disregard the appellant's criminal history, particularly offences committed as a child, in determining the appropriate sentence. The court emphasised the importance of adhering to the statutory guidelines and ensuring that all sentencing considerations are legally sound and relevant.

Orders