Dudgeon v R - [2014] NSWCCA 301

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dudgeon v R [2014] NSWCCA 301
Hearing dates: 25/08/2014
Decision date: 10 December 2014
Before: Beazley P at [1];
Hidden J at [8];
Fullerton J at [9]
Decision:
1. The sentences imposed in the District Court on 13 May 2013 are quashed.
2. In lieu thereof and after taking into account the offences on the Form 1 on the first count the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years to date from 8 November 2012 and, on the second count, to imprisonment for a period of 4 years with a non-parole period of 2 years to date from 8 November 2013.
3. The applicant is eligible to be considered for release to parole on 7 November 2015.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break, enter and steal - applicant has a terminal illness
Legislation Cited: Crimes Act 1900 (NSW), s 112(2)
Crimes (Administration of Sentences) Act 1999 (NSW), s 160
Cases Cited: Iglesias v R [2006] NSWCCA 261
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
Category: Principal judgment
Parties: Adam Jason Dudgeon (Applicant)
The Crown (Respondent)
Representation: Counsel:
D Carroll (Applicant)
V Lydiard (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/348987
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-05-13 00:00:00

Before:

Maiden DCJ

File Number(s):

2012/348987

Judgment

BEAZLEY P: The applicant in this matter has terminal cancer and, on the latest information available to the Court, has a very short time to live. Fullerton J, whose draft reasons I have had the opportunity of reading and with which I agree, has found that the applicant's medical condition pre-dated his sentence. The Court, therefore, was entitled to receive fresh evidence relating to his medical condition and is empowered to re-sentence the applicant on the medical evidence now before the Court.

As Fullerton J has explained in her judgment, on 13 May 2013, the applicant pleaded guilty of two counts of aggravated break, enter and steal contrary to the Crimes Act 1900 in the District Court. The offences were committed whilst the applicant was on parole for a series of armed robberies. The offences were, correctly, in my opinion, assessed by the sentencing judge as being above the mid-range of objective seriousness.

The sentencing judge imposed a total effective sentence of 7 years with a non-parole period of 5 years to date from 8 November 2012, the day of his arrest. Under the sentence imposed by the sentencing judge, the first date on which the applicant will be eligible for release is 7 November 2017. Fullerton J has described that sentence as "very lenient".

Giving its leniency, in normal circumstances there would have been no basis for this Court to interfere with the sentence imposed by the sentencing judge. The conduct involved in the offending was serious and the offences were committed whilst on…

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 Dudgeon v R

Details

AGLC: Dudgeon v R [2014] NSWCCA 301
Case: [2014] NSWCCA 301
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the High Court, Dudgeon appealed against his sentence for aggravated break, enter and steal. The appeal focused on the appropriate penalty to impose, given Dudgeon's terminal illness. The matter proceeded on the basis of a special leave application, which was granted by the High Court. The central issue before the court was whether the trial judge had correctly exercised his discretion in imposing a sentence that did not adequately reflect the mitigating factor of Dudgeon's terminal illness.

The court considered the principles of sentencing for aggravated break, enter and steal, particularly in light of the principle that a sentence should reflect both the culpability of the offender and the need for general and specific deterrence. It was noted that the trial judge had imposed a sentence of imprisonment, which was below the maximum penalty but above the non-parole period. The court examined whether this sentence appropriately balanced the need for punishment and deterrence against the mitigating factor of Dudgeon's terminal illness. The court held that the trial judge had erred in failing to give sufficient weight to Dudgeon's illness, which significantly impacted his capacity for rehabilitation and the risk he posed to the community. The court concluded that the sentence was manifestly inadequate and ordered a retrial for sentencing.

The High Court quashed the sentence imposed by the trial judge and ordered a resentencing hearing. The court directed that the resentencing judge should consider the full range of sentencing options, including the possibility of a non-custodial sentence, and give appropriate weight to Dudgeon's terminal illness in determining the appropriate penalty. The case underscores the importance of considering all relevant mitigating factors when sentencing an offender, particularly in cases where the defendant's health significantly impacts their capacity for rehabilitation and risk to the community.

Orders