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Dunn v The King

Dunn v The King

Case [2023] NSWCCA 1 31 January 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dunn v R [2023] NSWCCA 1
Hearing dates: 22 June 2022
Date of orders: 31 January 2023
Decision date: 31 January 2023
Before: Beech-Jones CJ at CL at [1]
Price J at [2]
Lonergan J at [3]
Decision:
(1) Extend time within which to file a notice of appeal until 22 February 2022.
(2) Grant leave to appeal.
(3) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – robbery armed with a dangerous weapon – parity principle – whether applicant had a justifiable sense of grievance in light of sentence imposed on co-offender – where offenders sentenced for the same offence but delay, other sentences for other offending and totality considerations affected sentences imposed – no justified sense of grievance – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Bond v R [2020] NSWCCA 277
Borg v R [2019] NSWCCA 129
Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Dawson (a pseudonym) v R [2021] NSWCCA 33
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lloyd v R [2017] NSWCCA 303
Mill v The Queen (1988) 166 CLR 59
Nasiri v R [2019] NSWCCA 1
Porter v R [2019] NSWCCA 117
Postiglione v The Queen (1996) 189 CLR 295; [1997] HCA 26
R v Cattell [2019] NSWCCA 297
R v Henry (1999) 46 NSWLR; [1999] NSWCCA 111
R v Jackson [2021] NSWDC 416
R v Obbens [2022] NSWCCA 109
R v Todd (1982) 2 NSWLR 517
Tatana v R [2006] NSWCCA 398
Wong v The Queen (2001) 207 CLR 584

Category: Principal judgment
Parties: David John Dunn (Applicant)
Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
A L Bonnor (Respondent)
Solicitors:
Matouk Joyner Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00027822
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

4 February 2021

Before:

Beckett DCJ

File Number(s):

2020/00027822

Judgment

BEECH-JONES CJ AT CL: I agree with Lonergan J.
PRICE J: I agree with Lonergan J.
LONERGAN J: The applicant, David John Dunn, seeks leave to appeal against the sentence imposed upon him following his plea of guilty to one count of robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). An offence contrary to s 97(2) of the Crimes Act has a maximum penalty of 25 years. There is no standard non-parole period.
Sentence was imposed by the District Court on 4 February 2021. The sentencing judge, Beckett DCJ, imposed a sentence of imprisonment of 5 years and 3 months, with a non-parole period of 3 years. The sentence commenced on 4 May 2020 and so the non-parole period expires on 3 May 2023.
The notice of intention to appeal was filed on 8 February 2021 but…

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 The King

Details

AGLC: Dunn v The King [2023] NSWCCA 1
Case: [2023] NSWCCA 1
Decision Date: 31 January 2023

CaseChat Overview and Summary

The applicant, Dunn, appealed against his sentence for robbery armed with a dangerous weapon, arguing that the sentence was excessive compared to the sentence imposed on his co-offender. The case was heard by the High Court of Australia. Dunn's primary contention was that the disparity in sentencing, despite both he and his co-offender being convicted of the same offence, indicated a lack of parity in the judicial process. He contended that this constituted a justifiable sense of grievance, warranting a review of his sentence.

The court was tasked with determining whether the disparity in sentences between Dunn and his co-offender constituted a justifiable sense of grievance. This required an analysis of the principles underpinning sentencing, particularly the parity principle and the totality approach. The court had to consider whether the delay in sentencing, other sentences for separate offences, and the totality of the sentences imposed could justifiably account for the differences in the sentences. Furthermore, the court needed to assess if these factors could sufficiently mitigate the perceived disparity to negate any sense of grievance.

The High Court found that the differences in sentencing were not sufficient to establish a justifiable sense of grievance. The court acknowledged the principle of parity but held that the differences in sentences were explained by the delay in sentencing, additional charges, and the totality of the sentences imposed. These factors, the court reasoned, adequately addressed the perceived disparity, and thus no justifiable sense of grievance existed. The court granted leave to appeal but ultimately dismissed the appeal, upholding the original sentence.

Orders