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 J16 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…
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- AGLC
- Dunn v R [2010] NSWCCA 128
- Case
- [2010] NSWCCA 128
- Decision Date
CaseChat Overview and Summary
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
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
Established by: CLELLAN CJ
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