Dunshea v R - [2016] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dunshea v R [2016] NSWCCA 244
Hearing dates: 9 September 2016
Decision date: 09 November 2016
Before: Beazley P at [1]
Garling J at [2]
Hidden AJ at [5]
Decision:
Leave to appeal granted, appeal allowed, sentence passed in the District Court quashed. Applicant resentenced to an aggregate term of imprisonment for 9 years, comprising a non-parole period of 6 years and a balance of term of 3 years, commencing 5 July 2012.

Catchwords: CRIMINAL LAW – sentence appeal – charges of supplying large commercial quantities of nexus, ecstasy – matters on Form 1 – whether sentencing judge took into account evidence of the applicant’s remorse – sentences subsequently passed on co-offenders - parity
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Church v R [2012] NSWCCA 149
Rees v R [2012] NSWCCA 47
Stojanovski v R [2013] NSWCCA 334
Category: Principal judgment
Parties: Applicant – Aaron Dunshea
Respondent Crown – Regina
Representation:
Counsel:
Applicant – Tim Game SC and David Barrow
Respondent Crown – Eric Balodis
Solicitors:
Applicant – Nick Boyden, Australian Criminal Law Specialists
Respondent Crown – C. Hyland, Solicitor for Public Prosecutions

File Number(s): 2012/209846
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 December 2013

Before:

Blackmore DCJ

File Number(s):

2012/209846

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden AJ. I agree with Hidden AJ’s reasons and proposed orders.
GARLING J: I agree with the orders proposed by Hidden AJ, including the aggregate, and indicative sentences identified.
For my part, I am unpersuaded that Blackmore SC DCJ failed to have regard to, and take into account such remorse as was expressed by the applicant. I would not uphold the first ground of appeal.
However, I entirely agree with Hidden AJ’s reasons for concluding that the parity ground has been made out. It is for that reason that I agree with the proposed resentencing.
HIDDEN AJ: The applicant, Aaron Dunshea, pleaded guilty before Blackmore SC DCJ to the following charges:

knowingly taking part in the supply of a large commercial quantity of a prohibited drug known colloquially as “nexus”;

knowingly taking part in the supply of a large commercial quantity of the prohibited drug, MDA or “ecstasy”.

Each offence, under s 25(2) of the Drug Misuse and Trafficking Act 1985, carries a maximum sentence of life imprisonment and a standard non-parole period of 15 years.
In sentencing the applicant for the first count, his Honour took into account on a Form 1 two offences: the (deemed) supply of a quantity of methylamphetamine and the unauthorised possession of a prohibited firearm, a pistol. His Honour sentenced the applicant to an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years, commencing on 5 July 2012. The indicative sentences were 11 years with a non-parole period…

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 Dunshea v R

Details

AGLC: Dunshea v The Queen [2016] NSWCCA 244
Case: [2016] NSWCCA 244
Decision Date: 09 November 2016

CaseChat Overview and Summary

The respondent, Dunshea, appealed against his sentence following his conviction for supplying large commercial quantities of nexus and ecstasy. The Court of Appeal examined whether the sentencing judge adequately considered the evidence of the applicant's remorse and whether the sentences passed on co-offenders warranted parity in this case. Dunshea contended that the sentencing judge had not sufficiently weighed his remorse as a mitigating factor, and that the sentences imposed on his co-offenders, who were involved in similar activities, were significantly lighter.

The legal issues before the court involved the interpretation and application of the sentencing principles as outlined in relevant legislation and case law. The court needed to determine whether the sentencing judge had erred in failing to adequately consider Dunshea's remorse, and whether the disparity in sentences between Dunshea and his co-offenders warranted a reconsideration of his sentence. The court also had to assess whether the sentences were within the appropriate range, taking into account the seriousness of the offences and the principles of parity and proportionality in sentencing.

In reaching its decision, the court reviewed the sentencing judge's reasons and the evidence presented at the trial. The court found that the sentencing judge had indeed failed to give appropriate weight to the evidence of Dunshea's remorse, which was a relevant mitigating factor. The court also considered the sentences imposed on co-offenders and found that the disparity was significant and warranted a reduction in Dunshea's sentence. The court concluded that the sentences were excessive given the mitigating factors and the principle of parity. The appeal was therefore allowed, and the sentences were varied to reflect the appropriate weight given to the mitigating factors and the principle of parity.

Orders