Dungay v R

Case [2020] NSWCCA 209


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Dungay v R [2020] NSWCCA 209
Hearing dates: 12 June 2020
Date of orders: 21 August 2020
Decision date: 21 August 2020
Before: Bell P at [1]
Davies J at [2]
N Adams J at [3]
Decision:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentence imposed on the applicant in the District Court on 27 May 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW):

10 years of imprisonment to date from 28 June 2017 and expire on 27 June 2027 with a non-parole period of 6 years and 6 months to expire on 27 December 2023.

(4) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:

Count 1: 5 years and 6 months with a non-parole period of 3 years and 8 months.

Count 2: 5 years and 5 months.

Count 3: (Taking into account the four Form 1 matters) 6 years and 6 months.

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – aggravated break, enter and commit serious indictable offence – robbery in company – sentencing judge had regard to Children’s Court criminal history – error established – manifest excess – Bugmy principles – youth and history of dysfunction – parity – re-sentencing

Legislation Cited:

Crimes Act 1900 (NSW), s97(1), s 112(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Children (Criminal Proceedings) Act 1987 (NSW) ss 14-15, s 33

Cases Cited:

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Crowley v R [2017] NSWCCA 99

Green v The Queen; Quinn v The Queen (2011) 244; CLR 462; [2011] HCA 49

Huckstadt v R [2016] NSWCCA 22

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

Ingrey v R [2016] NSWCCA 31

Judge v R [2018] NSWCCA 203

Katsis v R [2018] NSWCCA 9

Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37

Kliendienst v R [2020] NSWCCA 98

KT v R [2008] NSWCCA 51

Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29

Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nabalarua v R [2020] NSWCCA 68

Perkins v R [2018] NSWCCA 62

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v DM [2005] NSWCCA 181

R v Fernando (1992) 76 A Crim R 58

R v GDP (1991) 53 A Crim R 112

R v Hearne (2001) 124 A Crim R 451

R v Irwin [2019] NSWCCA 133

R v Mills [1998] 4 VR 235

R v Millwood [2012] NSWCCA 2

Regina v Henry & Barber (1999) 46 NSWLR 346; [1999] NSWCCA 111

Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169

Taysavang…

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Details
AGLC
Dungay v The Queen [2020] NSWCCA 209
Case
[2020] NSWCCA 209
Decision Date

CaseChat Overview and Summary

The case before the court involved the appellant, Dungay, who was convicted of a serious indictable offence, specifically aggravated break, enter and commit robbery in company. Dungay appealed against his sentence, arguing that the sentencing judge erred by considering his criminal history from the Children's Court. The High Court of Australia heard the appeal and assessed the legal issues surrounding the sentencing process and its implications on the principles established by Bugmy. The court was required to determine whether the sentencing judge's consideration of Dungay's youth and history of dysfunction constituted an error and whether the sentence was manifestly excessive under the circumstances.

The High Court considered the principles articulated in Bugmy, which emphasise the importance of parity in sentencing for Aboriginal and Torres Strait Islander peoples. The court examined whether the sentencing judge adequately considered Dungay's background, including his youth and history of dysfunction, in line with these principles. The court also assessed whether the sentencing judge's approach aligned with the overarching goal of achieving parity in sentencing, recognising the systemic issues faced by Indigenous offenders. The High Court found that the sentencing judge had indeed erred in considering Dungay's Children's Court criminal history, and that this error led to a manifest excess in the sentence imposed. The court concluded that the sentence did not adequately reflect the principles of parity and the need to consider the broader context of Dungay's background.

Given the identified errors and the manifest excess in the sentence, the High Court ordered that Dungay be re-sentenced. The court recognised the necessity of ensuring that future sentencing processes appropriately consider the unique circumstances of Indigenous offenders, including their youth and history of dysfunction. This decision reinforces the importance of adhering to the principles of parity in sentencing and highlights the need for courts to avoid errors that can lead to manifestly excessive sentences. The court's decision underscores the critical role of sentencing judges in balancing individual culpability with broader systemic issues affecting Indigenous communities.

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

Legal Principle Established

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