Dunn v R

Case [2018] NSWCCA 108 4 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dunn v R [2018] NSWCCA 108
Hearing dates: 28 May 2018
Decision date: 04 June 2018
Before: Macfarlan JA at [1];
Johnson J at [2];
Adamson J at [3]
Decision:
Leave to appeal refused.

Catchwords: CRIME – appeal – sentence – single ground of appeal that parity principles apply where offender sentenced for offence which is taken into account on Form 1 for co-offenders – parity principles inapplicable – no justifiable sense of grievance – prosecutor’s discretion to include charges on Form 1 not reviewable
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 32, 33
Crimes (Sentencing Procedure) Regulation 2010 (NSW) cl 4(1)
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 25A(1)
Cases Cited: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Gaggioli v R [2014] NSWCCA 246
Gordon v R [2018] NSWCCA 54
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Nguyen, Kathy v R [2015] NSWCCA 209
Category: Principal judgment
Parties: Gary Paul Bruce Dunn (Applicant)
Regina (Respondent)
Representation:
Counsel:
H Cox (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/204992
Decision under appeal

Court or tribunal:

District Court at Dubbo

Jurisdiction:

Criminal

Date of Decision:

20 June 2017

Before:

North DCJ

File Number(s):

2016/204992

Judgment

MACFARLAN JA: I agree with Adamson J.
JOHNSON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by North DCJ in the District Court at Dubbo on 20 June 2017. The single proposed ground of appeal is as follows:

“The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him to the sentences imposed upon his co-offenders April Jenkins and Lyall Kennedy.”

The applicant pleaded guilty to seven charges. Six were counts of ongoing supply of a prohibited drug, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 20 years’ imprisonment, and one count of supplying a prohibited drug (methylamphetamine), contrary to s 25(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 15 years’ imprisonment.
The applicant was sentenced to a total term of imprisonment of 6 years commencing 6 July 2016 (backdated to take account of pre-sentence custody), with a non-parole period of 3 years 6 months. The non-parole period will expire on 5 January 2020.
The sentence imposed for each count can be summarised in the following table.

Count/

section

Period of supply/…

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 Dunn v R

Details

AGLC: Dunn v R [2018] NSWCCA 108
Case: [2018] NSWCCA 108
Decision Date: 04 June 2018

CaseChat Overview and Summary

The appeal involved the sentencing of Dunn, who was convicted of certain criminal offences. Dunn sought to appeal his sentence, arguing that parity principles should apply in light of his co-offender being sentenced for the same offence. The case was heard in the High Court of Australia. The central legal issue before the court was whether the principles of parity should apply to ensure consistency in sentencing between co-offenders, particularly when one offence is taken into account on a Form 1 for co-offenders.

The court examined the applicability of parity principles in the sentencing of co-offenders. It found that while parity principles can guide sentencing consistency, they do not mandate identical sentences. The court concluded that there was no justifiable sense of grievance in the disparity of sentences, as the prosecutor's discretion to include charges on Form 1 is not subject to judicial review. This discretion is intended to balance the interests of justice and the broader implications of co-offender sentencing.

In light of the court's reasoning, the appeal was dismissed. The court held that the sentencing judge had appropriately exercised their discretion and that there were no grounds for interference based on the principles of parity. The court's decision underscored the importance of judicial independence in sentencing matters and the limited scope of judicial review over prosecutorial decisions.

Orders