Basten AJA at [1]; McNaughton J at [24]; Weinstein J at [25]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords:
CRIME – appeals – appeal against sentence – statutory aggravating factors – where the sentencing judge found that the offence was aggravated by reason of being committed “without regard for public safety” – where such a finding was not pursued by the Crown, conceded by the defence or foreshadowed by the sentencing judge – procedural fairness – threshold of materiality – where finding inevitable – no practical injustice – appeal dismissed
CRIME – appeals – appeal against sentence – manifest excess – whether sufficient weight given to subjective case – where sentence “stern” but not unreasonable nor unjust – sentence within range of available sentences – appeal dismissed
[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.
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AGLC
Dent v The King [2025] NSWCCA 43
Case
[2025] NSWCCA 43
Decision Date
CaseChat Overview and Summary
The case of Dent v The King involved an appeal against a sentence imposed on the appellant by the Supreme Court of Victoria. The appellant, Dent, was convicted of a serious crime and was sentenced by the trial judge, who identified certain statutory aggravating factors that increased the severity of the sentence. The primary issue in the appeal was whether the trial judge had properly considered and applied the statutory aggravating factors, specifically whether the offence was aggravated by being committed "without regard for public safety." The Crown did not pursue this factor, and it was neither conceded by the defence nor foreshadowed by the trial judge prior to sentencing.
The court considered whether the trial judge's failure to properly address the statutory aggravating factor constituted a breach of procedural fairness. The High Court determined that while such a failure might typically be seen as a significant procedural irregularity, in this instance, the finding was inevitable given the nature of the offence. The court concluded that the trial judge's omission did not result in practical injustice to the appellant, as the sentence imposed was within the range of available sentences and was not unreasonable or unjust. The court further held that the sentence, while stern, was not so excessive as to warrant interference by the appellate court.
In light of the above reasoning, the appeal was dismissed. The court found no material procedural error in the sentencing process and confirmed that the sentence imposed was appropriate given the circumstances of the case. The final orders of the court were that the appeal against sentence be dismissed, and the original sentence imposed by the trial judge be upheld.