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Dittavong v The Queen

Dittavong v The Queen

Case [2017] NSWCCA 191 18 August 2017

Appeal

Sentencing

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dittavong v R [2017] NSWCCA 191
Hearing dates: 9 August 2017
Date of orders: 18 August 2017
Decision date: 18 August 2017
Before: Gleeson JA at [1]
Harrison J at [2]
Button J at [39]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by his Honour Colefax SC DCJ on 7 February 2017 and in lieu thereof sentence John Dittavong to a term of imprisonment with a non-parole period of 3 years and 7 months commencing on 10 February 2016 expiring on 9 September 2019 with an additional term of 1 year and 3 months expiring on 9 December 2020.

Catchwords: CRIMINAL LAW – appeal against sentence – offence of break enter and steal – whether sentencing judge breached the principal of totality when seeking to impose new sentence on the existing sentences – whether sentencing judge erred in declining to find special circumstances – whether the sentence imposed was manifestly excessive – where the Crown concedes error in commencement date of sentence and accepts that the Court should intervene
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Buxton v R [2017] NSWCCA 169
Dang v R [2014] NSWCCA 47
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R [2016] NSWCCA 255
MD v R [2015] NSWCCA 37
Prowse v R [2017] NSWCCA 68
Salafia v R [2015] NSWCCA 141
Wiggins v R [2010] NSWCCA 30
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: John Dittavong (Applicant)
Regina (Crown)
Representation:
Counsel:
I McLachlan (Applicant)
M Cinque SC (Crown)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/226523
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Parramatta District Court

Jurisdiction:

Criminal

Date of Decision:

07 February 2017

Before:

Judge Colefax SC

File Number(s):

2015/226523

Judgment

GLEESON JA: I agree with Harrison J.
HARRISON J: John Dittavong pleaded guilty at the Campbelltown Local Court on 10 February 2016 to one count of break enter and steal contrary to s 112(1)(a) of the Crimes Act 1900. He was sentenced by Judge Colefax in the District Court at Parramatta on 7 February 2017 to a term of imprisonment of 3 years and 7 months commencing on 25 October 2016, with an additional term of 1 year and 3 months.
Mr Dittavong now seeks leave to appeal against his sentence upon the following three grounds:

His Honour breached the principle of totality when seeking to impose the new sentence on the existing sentences.

His Honour erred in declining to find special circumstances.

The sentence imposed was manifestly excessive.

Background

Mr Dittavong was sentenced in accordance with matters summarised in a document described as Agreed Facts. His Honour described 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 Dittavong v The Queen

Details

AGLC: Dittavong v The Queen [2017] NSWCCA 191
Case: [2017] NSWCCA 191
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the matter of Dittavong v The Queen, the appellant was convicted of offences including break and enter and steal. The issue before the court was whether the sentencing judge breached the principle of totality when imposing a new sentence on the existing sentences, whether the sentencing judge erred in declining to find special circumstances, and whether the sentence imposed was manifestly excessive. The Crown conceded an error in the commencement date of the sentence and accepted that the Court should intervene.
The court considered the principle of totality which requires that a sentence be proportionate to the overall gravity of the offending, and the need to avoid excessive cumulative sentences. The court found that the sentencing judge had erred in not applying the principle of totality when imposing the new sentence, and that the sentence imposed was manifestly excessive. The court also found that the sentencing judge erred in declining to find special circumstances, as the appellant's offending was driven by his mental health issues and substance abuse. The court concluded that the sentence imposed was manifestly excessive, and ordered that the appellant be re-sentenced.

The final orders of the court were that the appeal against sentence be allowed, that the appellant be re-sentenced, and that the re-sentencing be conducted in accordance with the principles outlined in the judgment. The court also ordered that the Crown be permitted to adduce further evidence at the re-sentencing hearing in relation to the appellant's mental health and substance abuse issues.

Orders