(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.
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
[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.
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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.