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Dixon v R

Dixon v R

Case [2019] NSWCCA 85 24 April 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Dixon v Regina [2019] NSWCCA 85
Hearing dates: 1 April 2019
Date of orders: 24 April 2019
Decision date: 24 April 2019
Before: Bathurst CJ at [1]; Ierace J at [76]; Hidden AJ at [77]
Decision:
(1) Grant the applicant leave to appeal.
(2) Appeal allowed.
(3) The sentence imposed on the applicant on 23 March 2018 is set aside and in lieu thereof the following sentence is imposed:
The applicant is sentenced to a total term of imprisonment of 4 years commencing on 31 October 2016 and expiring on 31 October 2020, consisting of a non-parole period of 2 years and 6 months expiring on 30 April 2019, with a balance of term of 1 year and 6 months expiring on 31 October 2020.

Catchwords:
CRIME – Property offences – Enter dwelling-house with intent to commit serious indictable offence – Circumstances of aggravation – knowledge of person inside dwelling

CRIME – Domestic violence – Stalking or intimidation with intent to cause fear of physical or mental harm – Form 1 offence.

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive - background of significant hardship and disadvantage

SENTENCING – Appeal against sentence – special circumstances – no reasons for finding of special circumstances - whether sentencing judge erred in failing to take into account risk of institutionalisation –considerable portion of life spent in custody -
SENTENCING – Appeal against sentence - relevant factors on sentence – objective seriousness - whether sentencing judge erred in assessment of objective seriousness – whether the sentencing judge took into account that applicant was on parole at time of offending and criminal record in assessing objective seriousness.
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Hart v R [2014] NSWCCA 172
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Elhassan v R [2018] NSWCCA 118
Gommesen v R [2012] NSWCCA 226
Hart v R [2014] NSWCCA 172
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Hurst v R [2017] NSWCCA 114
Judge v R [2018] NSWCCA 203
McCabe v The Queen [2016] NSWCCA 7
Pham v R (2015) 256 CLR 550; [2015] HCA 39
R v Bugmy (2013) 249 CLR 571; [2013] HCA 37
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
RG v R [2017] NSWCCA 60
Rotner v R [2011] NSWCCA 207
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Noel Anthony Dixon (applicant)
The Crown (respondent)
Representation:
Counsel:
P Krisenthal (applicant)
B Baker (respondent)
Solicitors:
Aboriginal Legal Service (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2016/325015
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

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 R [2019] NSWCCA 85
Case: [2019] NSWCCA 85
Decision Date: 24 April 2019

CaseChat Overview and Summary

The case of Dixon v R involved the appellant, Dixon, who was convicted of various criminal offences, including entering a dwelling-house with intent to commit a serious indictable offence, stalking or intimidation with intent to cause fear of physical or mental harm, and an assault occasioning actual bodily harm. The appeal was brought before the court against the severity of the sentence imposed, arguing that it was manifestly excessive and did not sufficiently consider the appellant's background of significant hardship and disadvantage.

The primary legal issues before the court were whether the sentencing judge erred in the assessment of the objective seriousness of the offending, particularly in failing to consider that the appellant was on parole at the time of the offending and his criminal record. Additionally, the court had to consider whether the sentencing judge erred in not recognising the risk of institutionalisation, given the considerable portion of the appellant's life spent in custody. The appellant also argued that the sentencing judge failed to provide reasons for finding special circumstances.

The court examined the sentencing principles and the objective seriousness of the offending, highlighting that the sentencing judge did not adequately consider the appellant's background and the circumstances of the offending. The court found that the appellant's extensive criminal history and the fact that he was on parole at the time of the offending should have been given more weight. Furthermore, the court noted the absence of reasons for the finding of special circumstances and the risk of institutionalisation. Consequently, the court held that the sentence was manifestly excessive and ordered a re-sentencing hearing.

Orders