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 78Category: Principal judgment Parties: Mathew Dixon – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
S Kluss – Applicant
D Patch – Respondent Crown
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…
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- AGLC
- Dixon v The Queen [2020] NSWCCA 123
- Case
- [2020] NSWCCA 123
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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