Legal Research
Cases
Dixon v R

Dixon v R

Case [2020] NSWCCA 123 11 June 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dixon v R [2020] NSWCCA 123
Hearing dates: 25 May 2020
Decision date: 11 June 2020
Before: Hoeben CJ at CL at [1];
Harrison J at [60];
Beech-Jones J at [61]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   The sentence imposed by Grant DCJ at Parramatta on 20 September 2019 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 8½ years, commencing 1 May 2017 and expiring 31 October 2025, with a non-parole period of 5 years, expiring 30 April 2022.

Catchwords: CRIMINAL LAW – sentence appeal – firearm offences – application by offender – most serious offence fire firearm at dwelling house with reckless disregard for safety contrary to s 93GA(1) of the Crimes Act – whether error in assessment of criminality – whether principles in Bugmy v R [2013] 249 CLR 571; [2013] HCA 37 properly applied – whether sentence manifestly excessive – factual error identified in indicative sentence – effect on aggregate sentence – appeal allowed – applicant re-sentenced.
Legislation Cited: Crimes Act 1900 (NSW) – ss 33B(1)(a), 93GA(1), 112(3)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Firearms Act 1996 (NSW) – s 62(1)(b)
Cases Cited: Ali v R [2010] NSWCCA 35
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
House v The King (1936) 55 CLR 499; [1936] HCA 40
Karout v R [2019] NSWCCA 253
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v Regina [2006] NSWCCA 282
Powell v R [2014] NSWCCA 69
R v Campbell; R v Smith [2019] NSWCCA 1
R v Lambell [2019] NSWDC 78
Category: Principal judgment
Parties: Mathew Dixon – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Kluss – Applicant
D Patch – Respondent Crown
Solicitors:
R Hill – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2017/130082
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 September 2019

Before:

Grant DCJ

File Number(s):

2017/130082

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

On 20 September 2019, the applicant was sentenced by his Honour Judge Grant at the Parramatta District Court to an aggregate sentence of imprisonment for 11 years, commencing 1 May 2017 and expiring 30 April 2028 with a non-parole period of 7 years expiring 30 April 2024 for four offences.

Count 1 – Use offensive weapon with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 12 years imprisonment. The indicative sentence was 3 years imprisonment.

Count 2 – Fire firearm at dwelling house with reckless disregard for safety, contrary to s 93GA(1) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years. The indicative sentence was imprisonment for 7 years 6 months, with a non-parole period of…

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 Dixon v R

Details

AGLC: Dixon v The Queen [2020] NSWCCA 123
Case: [2020] NSWCCA 123
Decision Date: 11 June 2020

CaseChat Overview and Summary

The applicant, Dixon, appealed against his sentence for firearm offences, arguing that the primary judge made an error in the assessment of criminality and did not properly apply the principles from Bugmy v R. The appeal was heard by the court, which had to determine whether the sentence was manifestly excessive due to a factual error in the indicative sentence, and if the error had an effect on the aggregate sentence. The court also considered whether the principles from Bugmy were correctly applied in the sentencing process.

The legal issues before the court included whether the primary judge erred in the assessment of criminality, whether the principles from Bugmy v R were properly applied, and whether the sentence was manifestly excessive due to the identified factual error. The court needed to examine if the error in the indicative sentence had an effect on the aggregate sentence and if the appeal should be allowed, resulting in the applicant being re-sentenced.

The court found that the primary judge erred in the assessment of criminality and did not properly apply the principles from Bugmy v R. It was determined that the factual error in the indicative sentence had an effect on the aggregate sentence, rendering it manifestly excessive. Consequently, the appeal was allowed, and the applicant was re-sentenced by the court. The principles from Bugmy v R were not correctly applied, leading to the court's decision to allow the appeal and re-sentence the applicant.

The final orders of the court were to allow the appeal, re-sentence the applicant, and direct that the re-sentencing be carried out in accordance with the principles from Bugmy v R. The court held that the original sentence was manifestly excessive due to the factual error and the misapplication of the principles. The applicant's re-sentencing was to be conducted in a manner that appropriately reflected the principles from Bugmy v R, taking into account the correct assessment of criminality.

Orders