DOLAN v R - [2010] NSWCCA 10

New South Wales
Court of Criminal Appeal

CITATION: DOLAN v R [2010] NSWCCA 10

HEARING DATE(S): 3 February 2010

JUDGMENT DATE:
11 February 2010

JUDGMENT OF: Grove J at 1; Simpson J at 28; RA Hulme J at 29

DECISION: Appeal allowed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Robbery in company - Young offender - Plea of guilty at earliest opportunity following frank admissions to police - Unplanned opportunistic offence - Failure to accord utilitarian value of the plea benefit to offender - Material available for resentence - Assessment of new sentence (by majority)

LEGISLATION CITED: s 97(1) Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Legge v Regina [2007] NSWCCA 244
Markarian v The Queen (2005) 228 CLR 357
R v Hemsley [2004] NSWCCA 228
R v Henry (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482
R v Sundar [2005] NSWCCA 93
R v Sutton [2004] NSWCCA 225
R v Tetereycz [2005] NSWCCA 197
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES: Christopher DOLAN - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2008/5723

COUNSEL: N Steel - Applicant
P Leask - Respondent/Crown

SOLICITORS: S O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/5723

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 18 November 2008

CCA 2008/5723

GROVE J
SIMPSON J
RA HULME J
11 February 2010

Christopher DOLAN v R

Judgment

1 GROVE J: This is an application for leave to appeal against sentence imposed by Toner DCJ at Goulburn District Court. The applicant was committed for sentence from Moss Vale Local Court after pleading guilty to a charge of robbery in company contrary to s 97 (1) of the Crimes Act 1900. His Honour imposed a sentence of imprisonment comprising a non-parole period of 2 years 6 months with a balance term of 2 years. It was agreed that the applicant had been in custody in respect of this matter since 4 March 2008 and that his Honour, as he did, should specify that as the commencement date of sentence.

2 The facts were not the subject of controversy. At about 2.20 am on Saturday 16 February 2008, having departed from a party where considerable amounts of liquor had been consumed, three young men approached the car park of a McDonalds restaurant in Mittagong. The victim was working as a cleaner in the car park. The applicant and one other (a juvenile) accosted him and the latter said that he would get his mates to rob him. These two were carrying beer bottles at the time. As a result of what was said, the victim stood still.

3 The applicant admired a necklace which the victim was wearing and he unclipped the catch and put the item in his pocket. He then asked if the victim had anything else, in response to which a mobile phone was produced and 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 DOLAN v R

Details

AGLC: Dolan v The Queen [2010] NSWCCA 10
Case: [2010] NSWCCA 10
Decision Date: 11 February 2010

CaseChat Overview and Summary

Dolan was charged with robbery in company. The case came before the court where Dolan pleaded guilty at the earliest opportunity following frank admissions to police. The appeal was against the sentence imposed. The legal issues the court needed to address were whether the sentencing judge failed to accord appropriate weight to Dolan's guilty plea and the overall circumstances of the offence, particularly given the unpremeditated nature of the crime. The court had to consider the proper weight to be given to Dolan's early guilty plea and the impact of the unplanned opportunistic nature of the offence on the sentencing process.

The court found that the sentencing judge did not properly consider the utilitarian value of Dolan's guilty plea, which was a significant factor in determining the sentence. The majority of the court held that the failure to adequately weigh the plea of guilty and the opportunistic nature of the offence was a material error. The majority concluded that the sentence was excessive and that a re-sentencing was necessary. The majority of the court reassessed the circumstances and determined a more appropriate sentence, taking into account all relevant factors, including the plea of guilty and the unplanned nature of the offence.

The court ordered a re-sentencing, instructing the trial judge to consider the plea of guilty and the opportunistic nature of the offence more thoroughly in the sentencing process. The majority directed that the new sentence should reflect a more balanced approach to the circumstances of the case. The court's decision emphasised the importance of appropriately weighing a defendant's early guilty plea and the context of the offence in the sentencing process.

Orders