Dennis v The Queen - [2015] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dennis v R [2015] NSWCCA 61
Hearing dates: 25 March 2015
Date of orders: 16 April 2015
Decision date: 16 April 2015
Before: R A Hulme J at [1]
Davies J at [2]
Bellew J at [3]
Decision:
The application for an extension time is refused.

Catchwords: CRIMINAL LAW – Murder – Application for extension of time in which to seek leave to appeal against sentence – Asserted Muldrock error – Whether sentencing judge gave primary or determinative significance to the prescribed standard non-parole period – Whether the sentencing judge engaged in a two stage process of sentencing – Whether the sentencing judge failed to have regard to the applicant’s subjective considerations – Necessity to consider the reasons of the sentencing judge as a whole – Necessity to consider the prospects of success of the proposed ground of appeal should an extension of time be granted – Error not established – Application to extend time refused.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 NSW
Cases Cited: Aldous v R [2012] NSWCCA 153
Black v R [2013] NSWCCA 265
Dennis v R [2012] NSWCCA 120
Essex v R [2013] NSWCCA 11
Kentwell v R [2014] HCA 37
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
O’Grady v R [2014] HCA 38
R v Dennis [2009] NSWSC 1357
Category: Principal judgment
Parties: Matthew Allen James Dennis - Applicant
Regina – Respondent
Representation:
Counsel:
Mr M King - Applicant
Ms T Smith - Respondent
Solicitors:

File Number(s): 2009/5917
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Date of Decision:

04 December 2009

Before:

Barr AJ

Judgment

R A HULME J: I agree with Bellew J.
DAVIES J: I agree with Bellew J.
BELLEW J: On 4 December 2009, having been found guilty by a jury of the murder of a 23 month old child, Matthew Allen Dennis (“the applicant”) was sentenced by Barr AJ to imprisonment for 26 years and 8 months to date from 17 April 2008. His Honour imposed a non-parole period of 20 years: R v Dennis [2009] NSWSC 1357. The maximum penalty for the offence of murder is life imprisonment. Because of the age of the victim in the present case, a standard non-parole period of 25 years imprisonment was prescribed.
An appeal by the applicant against his conviction was dismissed by this Court on 8 June 2012: Dennis v R [2012] NSWCCA 120.
The applicant now seeks an extension of time in which to seek leave to appeal against his sentence. Given the narrow issue argued on the present application, and in view of the conclusion I have reached, it is not necessary to set out the circumstances of the applicant’s offending.

THE APPLICATION FOR AN EXTENSION OF TIME

The affidavit material filed in support of the application to extend time establishes the following chronology.
On 9 December 2009, following sentence,…

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 Queen

Details

AGLC: Dennis v The Queen [2015] NSWCCA 61
Case: [2015] NSWCCA 61
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the case of Dennis v The Queen, the applicant sought an extension of time to apply for leave to appeal against his sentence for murder. The application was brought before the High Court of Australia, where the primary concern was the applicant's assertion that the sentencing judge had made a significant error in the application of the prescribed non-parole period. The applicant argued that the judge had placed undue emphasis on this period and failed to consider his subjective circumstances adequately.

The legal issues that the court needed to address were whether the sentencing judge had given primary or determinative significance to the prescribed non-parole period and if the judge had engaged in a two-stage process of sentencing. Additionally, the court had to determine if the sentencing judge had failed to consider the applicant's subjective factors. The court also considered the necessity of examining the sentencing judge's reasons as a whole and the likelihood of success of the proposed ground of appeal should an extension of time be granted.

The High Court found that the asserted error was not established, primarily because the sentencing judge had given appropriate weight to the prescribed non-parole period but had also considered the applicant's subjective circumstances. The court held that the sentencing judge had not engaged in a two-stage process and had not failed to consider the applicant's subjective considerations. Consequently, the application for an extension of time was refused. The court emphasised that the sentencing reasons must be examined as a whole and that the prospects of success for the proposed ground of appeal were not strong enough to warrant granting the extension of time.

Orders