Dyer v R

Case [2011] NSWCCA 185 16 August 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dyer v R [2011] NSWCCA 185
Hearing dates: 24 June 2011
Decision date: 16 August 2011
Before: McClellan CJ at CL at 1
Hidden J at 2
Johnson J at 5
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - entering a building with intent to commit serious indictable offence (assault occasioning actual bodily harm) - sentencing Judge declined to find "special circumstances" - claim of error in failing to take into account Applicant's risk of institutionalisation as "special circumstances" - argument not advanced in District Court - error not established - no lesser sentence warranted in any event - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Dyer v R [2006] NSWCCA 274
R v Hemsley [2004] NSWCCA 228
R v Gower (1991) 56 A Crim R 115
R v Binnie [2000] NSWCCA 483
R v Visconti [1982] 2 NSWLR 104
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Quayle v R [2010] NSWCCA 16
Edwards v R [2009] NSWCCA 199
Jackson v R [2010] NSWCCA 162
Category: Principal judgment
Parties: Eric John Dyer (Applicant)
Regina (Respondent)
Representation: Mr IH Nash (Applicant)
Ms V Lydiard (Respondent)
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/8952
Decision under appeal

Date of Decision:

2010-06-25 00:00:00

Before:

Judge Keleman SC

File Number(s):

2009/592

Judgment

McCLELLAN CJ at CL : I agree with Johnson J.

HIDDEN J : I agree with the orders proposed by Johnson J and, generally, with his Honour's reasons.

It is regrettable that the issue ventilated in this Court was not raised in the sentence proceedings. If it had been, it would have called for careful consideration. While this Court is a court of error, I would not question its discretion to intervene when the significance of evidence before the sentencing court was not perceived by the parties or the judge and the sentencing process thereby miscarried.

However, I agree with Johnson J that in the present case no lesser sentence was warranted for this serious offence and, in particular, that a shorter non-parole period would not have reflected the applicant's criminality. As Johnson J has pointed out, the sentence still leaves him with the benefit of a significant period of parole eligibility.

JOHNSON J : This is an application for leave to appeal by Eric John Dyer with respect to the sentence imposed in the Parramatta District Court by his Honour Judge Keleman SC on 25 June 2010.

The Applicant pleaded guilty to one count of entry of a building with intent to commit a serious indictable offence, assault occasioning actual bodily harm upon Stephen Franks, in circumstances of aggravation (being in company), contrary to s.111(2) Crimes Act 1900 . The maximum penalty for that offence is imprisonment for…

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 Dyer v R

Details

AGLC: Dyer v R [2011] NSWCCA 185
Case: [2011] NSWCCA 185
Decision Date: 16 August 2011

CaseChat Overview and Summary

In the case of Dyer v R, the appellant sought to appeal the sentence imposed by the sentencing judge, who had found him guilty of entering a building with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm. The appellant argued that the sentencing judge erred by not considering his risk of institutionalisation as a special circumstance, which could have potentially influenced the sentence imposed. This argument was not raised before the District Court and, therefore, could not be considered on appeal.

The legal issues before the court were whether the sentencing judge erred in not considering the appellant's risk of institutionalisation as a special circumstance and, if so, whether this error warranted a lesser sentence. The court had to determine whether the appellant's argument of special circumstances could be considered despite not being raised in the District Court. Additionally, the court had to assess whether the error, if any, warranted a lesser sentence.

The court held that the appellant's argument of special circumstances was not established as it was not raised before the District Court. Even if the argument had been considered, the court found that it did not warrant a lesser sentence. The court found no basis to interfere with the sentence imposed by the sentencing judge. Therefore, the appeal was dismissed, and the original sentence remained in place.

Orders