Peninton v The Queen; Dunningham v The Queen - [2008] NSWCCA 221

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Peninton v R; Dunningham v R [2008] NSWCCA 221

FILE NUMBER(S):
2007/3114
2007/3105

HEARING DATE(S):
19 August 2008

JUDGMENT DATE:
26 September 2008

PARTIES:
Lisa Michelle Peninton v R
Stephen John Dunningham v R

JUDGMENT OF:
McClellan CJ at CL Hislop J Hoeben J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/31/0148

LOWER COURT JUDICIAL OFFICER:
O'Connor DCJ

LOWER COURT DATE OF DECISION:
9 July 2007

COUNSEL:
In person (Peninton)
In person (Dunningham)
L. Wells (Crown)

SOLICITORS:
Self represented (Peninton)
Self represented (Dunningham)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Criminal Appeal Act, 1912

CASES CITED:
R v Mungomery (2004) 151 A Crim R 376
R v Elmir [2003] NSWCCA 192
R v Knight [2004] NSWCCA 145
Lowe v The Queen (1984) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Bragias (1997) 92 A Crim R 330
R v Simpson (2001) 53 NSWLR 704

TEXTS CITED:

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3114
2007/3105
McCLELLAN CJ at CL
HISLOP J
HOEBEN J
Friday 26 September 2008

LISA MICHELLE PENINTON v R
STEPHEN JOHN DUNNINGHAM v R

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J: The applicants were each charged on indictment on the following counts:
Count 1Knowing there was a person inside, did enter a dwelling house with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm in breach of the Crimes Act, 1900, s 111(2). The maximum penalty for this offence is 14 years imprisonment.
Count 2Did assault [the female victim], thereby occasioning actual bodily harm, in breach of the Crimes Act, 1900, s 59(1). The maximum penalty for this offence is imprisonment for 5 years.
Each applicant pleaded not guilty to those charges.
Mr Dunningham was additionally charged with:
Count 3Maliciously wound [the male victim] in breach of the Crimes Act, 1900, s 35(1)(a) (now repealed). The maximum penalty for this offence was seven years imprisonment.
Count 4Assault [the female victim’s child] in breach of the Crimes Act¸1900, s 61.
Mr Dunningham pleaded not guilty to the additional counts.
Ms Peninton was convicted on counts 1 and 2. Mr Dunningham was convicted on counts 1-3 but was found not guilty on count 4.
On 9 July 2007 Ms Peninton was sentenced as follows:
Count 1Non parole period of 2 years imprisonment commencing on 21 December 2006 and expiring on 20 December 2008 with a further term of 18 months to commence from the expiration of the non parole period and expire on 20 June 2010.
Count 2Imprisonment for 12 months to date from 21 December 2006 and expire on 20 December 2007.
On the same day Mr Dunningham was sentenced by the same judge as follows:
Count 1Non parole period of 2 years imprisonment commencing on 2 April 2007 and expiring on 1…

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.

Keep reading for free

Create a free CaseChat account to read Peninton v The Queen; Dunningham v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWCCA 221
Decision Date: 26 September 2008

CaseChat Overview and Summary

In the case of Peninton v The Queen; Dunningham v The Queen, the applicants, Peninton and Dunningham, challenged the sentences imposed upon them by the sentencing judge. The applicants had both been convicted on count 1 of the same criminal offence, and the sentencing judge determined their sentences concurrently. The applicants argued that there was a marked disparity between the objective and subjective circumstances of their cases, and that the sentencing judge should have imposed different sentences on each of them.

The legal issues before the court were whether the sentencing judge erred in imposing the same sentence on count 1 upon each applicant, and whether some other, less severe, sentence was warranted in law and should have been passed. The court had to consider the principles of sentencing and the discretion of the sentencing judge in determining the appropriate sentence. The court also had to assess whether the sentencing judge had taken into account all relevant factors in imposing the sentence.

The court found that there was no marked disparity between the objective and subjective circumstances of the applicants' cases. The court also found that the sentencing judge had exercised his wide discretion in determining the appropriate sentence for each applicant. The court held that the sentencing judge was not in error in imposing the same sentence on count 1 upon each applicant, and that some other, less severe, sentence was not warranted in law and should not have been passed.

Accordingly, the court granted leave to appeal but dismissed the appeal. The court proposed the following orders for each applicant: leave to appeal granted, and appeal dismissed. The court held that the sentences imposed by the sentencing judge were appropriate and within his wide discretion. The court found no error in the sentencing judge's imposition of the same sentence on count 1 upon each applicant, and no other, less severe, sentence was warranted in law and should have been passed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ

The sentencing judge determined both sentences at the same time. His Honour had a wide sentencing discretion. In my opinion, there was no marked disparity between the objective and subjective cases of the applicants. In my opinion, no error has been demonstrated as a result of his Honour imposing the same sentence on count 1 upon each applicant.Conclusion This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. In the case of each applicant, I propose the following orders1. Leave to appeal granted.2. Appeal dismissed. HOEBEN J: I agree with Hislop J and the orders which he proposes.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Full text does not contain this section.