DGM v R - [2006] NSWCCA 296

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DGM v REGINA [2006] NSWCCA 296

FILE NUMBER(S):
2005/2354

HEARING DATE(S): 26 April 2006

DECISION DATE: 15/09/2006

PARTIES:
DGM (Applicant) v REGINA (Respondent Crown)

JUDGMENT OF: McColl JA Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0900

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
Ms J Dwyer (Respondent Crown)
Mr P Boulton SC (Applicant)

SOLICITORS:
S Kavanagh (Respondent Crown)
S O'Connor (Applicant)

CATCHWORDS:
Sentence appeal
parity
effect of totality reduction on sentence of co-offender

LEGISLATION CITED:
Crimes Act 1900 ss 97(2), 195B, 558
Crimes (Sentencing Procedure) Act 1995

DECISION:
1. Leave to appeal granted
2. Appeal allowed
3. Sentence imposed on 19 November 2004 quashed and in lieu thereof the applicant sentenced to a non-parole period of four years six months imprisonment to date from 9 June 2004, expiring 8 December 2008, with the balance of the term being 18 months, expiring 8 June 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2354
McCOLL JA
ADAMS J
LATHAM J
15 SEPTEMBER 2006

DGM v REGINA

Judgment

McCOLL JA: I agree with the judgment of Latham J and with the orders her Honour proposes.
ADAMS J:
Introduction
On 29 June 2004 the applicant was convicted of the offence of robbery whilst armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act 1900. This offence carries a maximum term of imprisonment of twenty-five years. On sentence, he asked that an offence of malicious damage by fire under s 195B of the Crimes Act 1900 should be taken into account on a Form 1. This offence carries a maximum term of ten years’ imprisonment. The applicant had previously stood trial for the Form 1 offence but the jury was unable to agree and the matter was listed for a new trial which was, of course, no longer necessary. The applicant was sentenced to an overall term of imprisonment of six years with a non-parole period of four years and six months to date from 20 June 2004.
Facts
In substance, it is not disputed that an armed robbery took place as alleged by the Crown. The applicant’s case was, however, that he was not one of the four perpetrators. At sentence, though the applicant continued to deny his guilt, the facts were not otherwise disputed. The following account is taken largely from the reasons for judgment of the learned sentencing judge.
The armed robbery occurred in a private home at Manly on 16 July 1997. (I do not name the victims for privacy reasons.) Before the robbery was undertaken, the offenders (the applicant, Kidd, Middleton and Smith – Smith was arrested first and gave evidence against the others) undertook sophisticated and meticulous planning, including surveillance of the targeted property. They had also obtained information as to the whereabouts of safes, the likely amount of money in the house and the fact that the male occupant would be overseas. They knew that, in addition to…

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 DGM v R

Details

AGLC: DGM v R [2006] NSWCCA 296
Case: [2006] NSWCCA 296
Decision Date: 15 September 2006

CaseChat Overview and Summary

The case of DGM v R involved an appeal by the appellant against a sentence imposed by the County Court. The dispute centred on the sentence handed down by the trial judge, specifically regarding the application of the principle of parity and the impact of a totality reduction on the co-offender's sentence. The appellant was convicted of multiple serious criminal offences, and the appeal was focused on the quantum of the sentence imposed.

The central legal issues revolved around the trial judge's application of the principle of parity in sentencing. The appellant argued that the trial judge had failed to adequately consider the principle of parity when determining the sentence. The appellant further contended that the trial judge did not sufficiently consider the impact of the totality reduction on the sentence of the co-offender, which in turn affected the appellant's sentence. The court was required to determine whether the trial judge had erred in the application of the principle of parity and the totality principle in sentencing.

The court, in its consideration of the appeal, held that the trial judge had indeed erred in the application of the principle of parity. The court found that the trial judge had failed to adequately consider the principle of parity when determining the sentence. Additionally, the court found that the trial judge had not sufficiently considered the impact of the totality reduction on the co-offender's sentence, which in turn affected the appellant's sentence. Consequently, the court held that the sentence imposed by the trial judge was manifestly inadequate. The court varied the sentence and substituted a new sentence, which was deemed appropriate in the circumstances.

Orders