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Dyer v Regina

Dyer v Regina

Case [2006] NSWCCA 274 20 September 2006

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Dyer v Regina [2006] NSWCCA 274

FILE NUMBER(S):
2006/1317

HEARING DATE(S): 30/08/06

DECISION DATE: 20/09/2006

PARTIES:
Eric John Dyer v Regina

JUDGMENT OF: Hunt AJA Simpson J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1220

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
Mr T. Watts - Applicant
Mr W. Dawe QC - Crown/Respondent

SOLICITORS:
S. Etherington (Legal Aid Commission) - Applicant
S. Kavanagh (DPP) - Crown/Respondent

CATCHWORDS:
Application for leave to appeal against severity of sentence - erroneous finding in relation to facts of co-offender's sentence - vulnerability of victim - age and mental functioning level of offender - totality principle - sentence not manifestly excessive

LEGISLATION CITED:
Crimes Act (NSW)
Crimes (Sentencing Procedure) Act 1999

DECISION:
I propose that the application for leave to appeal be granted; but the appeal be dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1317
HUNT AJA
SIMPSON J
WHEALY J
WEDNESDAY 20 September 2006

Eric John DYER v REGINA

Judgment

HUNT AJA: I agree.
SIMPSON J: I agree with Whealy J.
WHEALY J: This is an application for leave to appeal against sentence brought by Eric John Dyer (“the applicant”).
On 11 November 2005 the learned sentencing Judge dealt with a plea of guilty to an offence that on 27 March 2004 at Werrington the applicant in company with Stephen Browne and a person whose identity was unknown did rob Cemil Ates of a sum of money and a mobile telephone. This was an offence under s 97(1) of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for 20 years.
His Honour Judge Knight sentenced the applicant to a term of imprisonment consisting of a non-parole period of one year 11 months and three days to date from 29 September 2005 and to expire on 31 August 2007. The balance of the term reflected a total term of three years five months and three days to date from 29 September 2005 and to expire on 3 March 2009. The sentencing Judge recommended that the applicant be released to parole on 31 August 2007. The sentence took into account the fact that the applicant had been in custody solely in relation to the present matter from 29 January 2005 to 24 February 2005, namely a period of 27 days. The sentence was backdated to 29 September 2005. The date was selected because, on that date, custodial sentences for other matters against the applicant expired and his custody thereafter related solely to the present matter. These aspects of the sentence imposed made it clear that the sentence represented a total term of three and a half year with a non-parole period of two years. In each case, however, the total term and the non-parole period was reduced by 27 days to take into account the prior period in custody I have mentioned.
The facts relating to the offence
At about 9.30am on 27 March 2004 the applicant, Steven…

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 Regina

Details

AGLC: Dyer v Regina [2006] NSWCCA 274
Case: [2006] NSWCCA 274
Decision Date: 20 September 2006

CaseChat Overview and Summary

In the case of Dyer v Regina, the applicant appealed against the severity of the sentence imposed by the sentencing Judge, his Honour Judge Knight. The applicant was found guilty of being a participant in a robbery in company on a train at Werrington Railway Station. The applicant sought leave to appeal against the severity of his sentence, which included a non-parole period of one year, eleven months and three days and a total term of three years, five months and three days. The applicant argued that the sentencing Judge made an erroneous finding in relation to the facts of his co-offender’s sentence and that the sentence was manifestly excessive. The court was required to determine whether the sentence was manifestly excessive, whether the sentencing Judge made an erroneous finding in relation to the facts of the co-offender’s sentence, and whether the vulnerability of the victim, the age and mental functioning level of the offender, and the totality principle were properly considered.

The court held that the sentence was not manifestly excessive and that the sentencing Judge did not make an erroneous finding in relation to the facts of the co-offender’s sentence. The court noted that the applicant was a participant in the robbery and that his role, while lesser than his co-offenders, was still an integral part of the crime. The court also considered the vulnerability of the victim, the age and mental functioning level of the offender, and the totality principle in determining the appropriate sentence. The court held that the sentence imposed was not manifestly excessive and that the sentencing Judge had properly considered all relevant factors in determining the appropriate sentence.

The court dismissed the application for leave to appeal against the severity of the sentence. The court held that the sentence imposed was not manifestly excessive and that the sentencing Judge had properly considered all relevant factors in determining the appropriate sentence. The court noted that the applicant was a participant in the robbery and that his role, while lesser than his co-offenders, was still an integral part of the crime. The court also considered the vulnerability of the victim, the age and mental functioning level of the offender, and the totality principle in determining the appropriate sentence. The court held that the sentence imposed was not manifestly excessive and that the sentencing Judge had properly considered all relevant factors in determining the appropriate sentence. The applicant’s application for leave to appeal against the severity of the sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

His Honour Judge Knight sentenced the applicant to a term of imprisonment consisting of a non-parole period of one year 11 months and three days to date from 29 September 2005 and to expire on 31 August 2007. The balance of the term reflected a total term of three years five months and three days to date from 29 September 2005 and to expire on 3 March 2009. The sentencing Judge recommended that the applicant be released to parole on 31 August 2007. The sentence took into account the fact that the applicant had been in custody solely in relation to the present matter from 29 January 2005 to 24 February 2005, namely a period of 27 days. The sentence was backdated to 29 September 2005. The date was selected because, on that date, custodial sentences for other matters against the applicant expired and his custody thereafter related solely to the present matter. These aspects of the sentence imposed made it clear that the sentence represented a total term of three and a half year with a non-parole period of two years. In each case, however, the total term and the non-parole period was reduced by 27 days to take into account the prior period in custody I have mentioned.The facts relating to the offence At about 9.30am on 27 March 2004 the applicant, Steven Browne and a third unknown person boarded a westbound train at St Marys Railway Station. Prior to the train reaching Werrington, the three young men approached the victim Mr Ates. They threatened the victim and demanded that he hand over a bracelet he was wearing. Browne punched the victim in the face and the third man grabbed the victim and held him for a brief period. Browne then snatched the bum bag the victim was wearing but, immediately afterwards, Mr Ates managed to get away. He ran along the train and pressed the security alert button. Browne and the third man took the $200 in cash which was in the bag and also a mobile phone. When the train reached Werrington Railway Station, the three assailants left the train and walked away. The victim remained on the train until it arrived at Penrith where he was able to contact police. The applicant was arrested at Penrith police station on 19 August 2004 where he was shown video surveillance footage taken at the two railway stations. He admitted that he was one of the people on the video at St Marys Railway Station but he would not disclose the identity of the other two persons. He agreed also that he was one of the people shown on the footage at Werrington Railway Station but said he could not remember being involved in a robbery on the train on that date. The applicant was subsequently charged with the present offence, was committed for trial on 3 December 2004 and pleaded guilty on the first day of the trial namely, 23 August 2005. The sentence proceedings were adjourned to 11 November 2005 and, as I have said, he was sentenced on that day.Remarks on sentence The sentencing Judge succinctly and comprehensively identified the facts of the matter and the relevant sentencing principles. At page 3 his Honour said: -“Those facts reveal to my mind very considerable criminality. They show an offence of robbery in company and although you are not the person who actually took the goods off the victim you were quite clearly a participant in the robbery. While your part in the robbery was lesser than perhaps the other two person it still was an integral part of it”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Dyer v Regina [2006] NSWCCA 274

Most Recent Citation

Wu v R [2011] NSWCCA 102

Cases Citing This Decision

Du Plessis v The King [2024] NSWCCA 164
Citation 1 (Para 27)

…A 152 at [33]; (4) where the victim was a person travelling on a train who was to some degree isolated from other people on the train: R v Dyer [2006] NSWCCA 274 at [27] and R v Ibrahami [2005] NSWCCA 153 at [24]; (5) where the victim was ‘unwell and dry retching’, so that he was less able to respond to an attack th…
Drew v R [2016] NSWCCA 310
Citation 2 (Para 4)

…where the victim was a person travelling on a train who was to some degree isolated from other people on the train: R v Dyer [2006] NSWCCA 274 at [27] and R v Ibrahami [2005] NSWCCA 153 at [24];…
Dyer v R [2011] NSWCCA 185
Citation 3 (Para 1)

…y harm. In 2005, he received a custodial sentence for robbery in company, a sentence against which he appealed unsuccessfully to this Court: Dyer v R [2006] NSWCCA 274. As mentioned earlier, in March 2008, he was sentenced for assault occasioning actual bodily harm committed against Mr Franks.…
Wu v R [2011] NSWCCA 102
Citation 4 (Para 9)

…In Dyer v R [2006] NSWCCA 274 there was reference to Mill v The Queen for the relevance of totality principles when the offender had served other sentences since the date of the offence and was currently serving another sentence. It was said that the earlier periods in custody had been intermittent and not continuou…

See all citing cases →

Cases Cited

R v Gordon [2022] ACTCA 48
Citation 1 (Para 31)

…ult. In such a situation, having regard to the nature of crime, general deterrence and retribution remained significant sentencing considerations. In R v Gordon (1994) 71 A Crim R 469 Hunt CJ at CL said: - “General deterrence remains of primary importance and where a youth conducts himself in a way an adult might co…
R v MMK [2006] NSWCCA 272
Citation 2 (Para 27)

…and robbery ( R v Ibrahimi [2005] NSWCCA 153 per Latham J with whom other members of the Court agreed; see also the decision of the Court in R v MMK [2006] NSWCCA 272 at para 8).…
R v Ibrahimi [2005] NSWCCA 153
Citation 3 (Para 27)

…ly vulnerable. This is especially so when the victim is confronted by a group of young men bent on carrying out an assault and robbery ( R v Ibrahimi [2005] NSWCCA 153 per Latham J with whom other members of the Court agreed; see also the decision of the Court in R v MMK [2006] NSWCCA 272 at para 8).…
R v Henry [1999] NSWCA 111
Citation 4 (Para 14)

…s attention to the appropriate sentencing principles. His Honour’s analysis commenced with a consideration of the guideline judgment in R v Henry (1999) 46 NSWLR 346. His Honour noted that, although Henry was a case dealing with armed robbery, the guideline in Henry had also been held to apply to robbery in company (…
Postiglione v the Queen [1997] HCA 26
Citation 5 (Para 28)

…disparity in the sentence imposed upon one co-offender when compared to the earlier sentence. ( Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295) It is simply impossible to say, having regard to the complex of offences faced by Mr Browne, that considerations of parity arise in relation to the sentence…
Mill v The Queen [1988] HCA 70
Citation 6 (Para 6)

…The totality principle is a principle well recognised in the law relating to sentencing. In Mill v R (1988) 166 CLR 59 at 62-63 Wilson, Deane, Dawson, Toohey and Gaudron JJ said: - “The totality principle is a recognised principle of sentencing formulated to assist the Court when sentencing an offender for a number…
House v R [1936] HCA 40
Citation 7 (Para 11)

…important to recall that a submission that a sentence is excessive or inadequate derives from the third kind of error identified in House v The King (1936) 55 CLR 499 at 505. For an error of this kind to occur, it must appear, upon the facts, that the discretionary exercise is unreasonable or plainly unjust so as t…
Lowe v R [1984] HCA 46
Citation 8 (Para 28)

…ent must relate to and emerge from a disparity in the sentence imposed upon one co-offender when compared to the earlier sentence. ( Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295) It is simply impossible to say, having regard to the complex of offences faced by Mr Browne, that considerations of pari…
Lowndes v The Queen [1999] HCA 299
Citation 9 (Para 11)

…said, “the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice”; Lowndes v The Queen (1999) 195 CLR 665 at 671-672.…
House v The King 63 WN 176
Citation 10 (Para 11)

…was. First, it is important to recall that a submission that a sentence is excessive or inadequate derives from the third kind of error identified in House v The King (1936) 55 CLR 499 at 505. For an error of this kind to occur, it must appear, upon the facts, that the discretionary exercise is unreasonable or plainly unj…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 15)
Crimes Act 1900 (ACT)
1 mention (from Para 4)