Dunn v R

Case [2010] NSWCCA 128 16 June 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DUNN v R [2010] NSWCCA 128

FILE NUMBER(S):
2008/15955

HEARING DATE(S):
2 June 2010

JUDGMENT DATE:
16 June 2010

PARTIES:
Gregory Allen DUNN - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
McClellan CJatCL Grove J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/15955-006

LOWER COURT JUDICIAL OFFICER:
Boulton ADCJ

LOWER COURT DATE OF DECISION:
29 May 2009

COUNSEL:
M Ramage QC - Applicant
J Dwyer - Respondent/Crown

SOLICITORS:
Byrnes & Cox - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Indictment for causing grievous bodily harm with intent
Plea of guilty to recklessly causing grievous bodily harm accepted in satisfaction of indictment
Standard non parole period
What is required to express scale of seriousness of offence
No obligation to articulate hypothetical abstract offence
In circumstance that conviction for particular offence followed offender's plea in the District Court no relevance in fact that offence against the provision may be charged and dealt with in Local Court
Victim loses sight of eye
Considerable lenience in imposition
Intervention not called for

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
Phan v R [2010] NSWCCA 8
R v AJP (2004) 158 A Crim R 575
R v Crombie [1999] NSWCCA 297
R v Depoma [2003] NSWCCA 382
R v El Masri [2005] NSWCCA 167
R v Knight (2007) 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Mitchell (2007) 177 A Crim R 94
R v Way (2004) 60 NSWLR 168

TEXTS CITED:

DECISION:
Leave to appeal against sentence granted but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/15955-006
McCLELLAN CJ at CL
GROVE J
JOHNSON J
16 June 2010

Gregory Allan DUNN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Grove J.
GROVE J: This is an application for leave to appeal against severity of sentence imposed by Boulton ADCJ in Port Macquarie District Court on 29 May 2009.
The applicant was scheduled to stand trial in the sittings of the Court commencing on 18 May 2009 upon an indictment containing a single count charging causing grievous bodily harm with intent contrary to s 33 (1) (b) of the Crimes Act 1900. That charge is triable only on indictment but s 33 (3) provides that it is open to a jury to acquit of that charge and find an accused guilty of an offence against s 35 of that Act.
On 19 May the applicant pleaded not guilty to the charge on the indictment but guilty of recklessly causing grievous bodily harm contrary to s 35 (2). Pursuant to s 153 of the Criminal Procedure Act 1986 it was open to the Crown, as it did, to accept that plea to the uncharged offence in satisfaction of the indictment.
An offence against s 35 (2) of the Crimes Act carries a prescribed maximum…

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 [2010] NSWCCA 128
Case: [2010] NSWCCA 128
Decision Date: 16 June 2010

CaseChat Overview and Summary

In the matter of Dunn v R, the respondent was convicted in the District Court for recklessly causing grievous bodily harm, with the victim losing sight in one eye. The respondent pleaded guilty to this charge, which was accepted in satisfaction of a more severe indictment for causing grievous bodily harm with intent. The primary legal issue before the court was the appropriate sentence to reflect the seriousness of the offence and the principles governing the imposition of a non-parole period. The court had to consider the relevance of the hypothetical abstract offence that could have been charged and the fact that the offence was ultimately prosecuted in the District Court rather than the Local Court. The court deliberated on whether it was necessary to articulate a hypothetical abstract offence to determine the scale of seriousness and the appropriate non-parole period. The respondent's plea and the particular circumstances of the case, including the significant impact on the victim, also influenced the sentencing considerations.

The court found that there was no obligation to articulate a hypothetical abstract offence when determining the scale of seriousness of the offence. It emphasised that the relevant consideration was the actual offence for which the respondent was convicted and the specific circumstances surrounding the incident. The fact that the offence could have been charged under a different provision and dealt with in the Local Court was deemed irrelevant to the sentencing process in this case. The court recognised the substantial impact on the victim, who lost sight in one eye, and exercised considerable leniency in imposing the sentence. Given the mitigating factors and the plea of guilty, the court determined that an intervention by the Court of Appeal was not warranted, and the sentence imposed was deemed appropriate.

The court concluded that the sentence should reflect the seriousness of the offence and the impact on the victim, taking into account the lenience warranted by the plea of guilty. The court set a non-parole period that was deemed sufficient to reflect the gravity of the offence while allowing for the respondent's rehabilitation. The final orders of the court were that the respondent be sentenced to a term of imprisonment with a specified non-parole period, reflecting the court's assessment of the offence's seriousness and the circumstances of the case. The court's decision underscored the importance of focusing on the actual offence and its consequences when determining an appropriate sentence.

Orders