R v Brown; R v Dungay - [2020] NSWDC 921

District Court

New South Wales

Medium Neutral Citation: R v Brown; R v Dungay [2020] NSWDC 921
Hearing dates: 23 November 2020
Decision date: 25 November 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Brown: Convicted.
Form 1 matter taken into account on sentence.
Special circumstances found –to have longer period of supervision within the community to assist him to rehabilitate within the community & to assist him to overcome his use of illegal drugs.
The offender is sentenced to a term of imprisonment of 4 years comprising a NPP of 2 years and 6 months to commence on 28 November 2019 and to expire on 27 May 2022 and a balance of term of 1 year and 6 months commencing on 28 May 2022 and expiring on 27 November 2023.
Dungay: Convicted.
Form 1 matter taken into account.
Special circumstances found – longer period of supervision within the community to assist in drug rehabilitation – residential drug rehab program recommended & I note the psychologist’s recommendation that he be housed in minimum security. (Copy psych rpt to be taken into custody with the offender).
The offender is sentenced to a term of imprisonment for 3 years and 6 months comprising a NPP of 2 years to commence on 28 February 2020 and to expire on 27 February 2022, and a balance of term of 1 year and 6 months to commence on 28 February 2022 and to expire on 27 August 2023.

Catchwords:
CRIMINAL – sentence - specially aggravated break, enter and steal armed with a dangerous weapon – Form 1 matter in re each offender of conspiracy to commit robbery armed with a dangerous weapon – joint criminal enterprise involving two (other) offenders – objective seriousness - circumstances of aggravation –- subjective matters

Legislation Cited:
CrimesAct1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmyv The Queen (2013) 249 CLR 571
RvFernando (1992) 76 A Crim R 58
RvMillwood [2012] NSWCCA 2

Category: Sentence
Parties: Regina
Brown, Gregory Andrew Michael
Dungay, Wayne
Representation: Counsel:
Dungay: Mr R Hussey
Solicitors:
Crown: Ms L Hill ODPP
Brown: Mr J McKenzie
Dungay: Ms B Drinkwater

File Number(s): Brown: 2019/00375015
Dungay: 2019/00374786

Judgment

HIS HONOUR: Each of the offenders appears for sentence in respect of the same charge; that being an offence of specially aggravated break, enter and steal armed with a dangerous weapon, contrary to s 112(3) of the Crimes Act 1900. The maximum penalty provided is 25 years’ imprisonment and there is a relevant standard non-parole period of seven years’ imprisonment.
In addition, each of the offenders asks that the Court take into account when sentencing them for that offence a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The additional matter is an offence of conspiracy to commit robbery armed with a dangerous weapon, it being a common law offence in relation to which the penalty is at large, although if it…

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 R v Brown; R v Dungay 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: [2020] NSWDC 921
Decision Date: 25 November 2020

CaseChat Overview and Summary

In the case of R v Brown; R v Dungay, the defendants were convicted of conspiracy to commit robbery armed with a dangerous weapon. The matter was heard in a court where the defendants were jointly engaged in a criminal enterprise with two other individuals. The primary legal issues that the court had to determine involved the sentencing process, including the consideration of special circumstances and the objective and subjective seriousness of the offence. The court also had to assess the objective seriousness of the offence, including the circumstances of aggravation, and the subjective matters related to the offenders' backgrounds and rehabilitation prospects.

The court's reasoning focused on the objective and subjective factors of the crime. It found that the conspiracy involved a dangerous weapon, which significantly heightened the seriousness of the offence. The court also noted the special circumstances of each defendant, including their respective backgrounds and the potential for rehabilitation. For Brown, the court found that a longer period of supervision within the community would assist in his rehabilitation and drug use cessation. For Dungay, the court identified the need for a residential drug rehabilitation program and recommended minimum security housing, as per the psychologist's report.

Brown was sentenced to a term of imprisonment of 4 years, comprising a non-parole period of 2 years and 6 months, followed by a balance of 1 year and 6 months. Dungay received a sentence of 3 years and 6 months, with a non-parole period of 2 years, followed by a balance of 1 year and 6 months. Both sentences included considerations for the defendants' rehabilitation and the need for supervision within the community.

Orders

Orders of the court

Brown: Convicted.

Form 1 matter taken into account on sentence.

Special circumstances found –to have longer period of supervision within the community to assist him to rehabilitate within the community & to assist him to overcome his use of illegal drugs.

The offender is sentenced to a term of imprisonment of 4 years comprising a NPP of 2 years and 6 months to commence on 28 November 2019 and to expire on 27 May 2022 and a balance of term of 1 year and 6 months commencing on 28 May 2022 and expiring on 27 November 2023.

Dungay: Convicted.

Form 1 matter taken into account.

Special circumstances found – longer period of supervision within the community to assist in drug rehabilitation – residential drug rehab program recommended & I note the psychologist’s recommendation that he be housed in minimum security. (Copy psych rpt to be taken into custody with the offender).

The offender is sentenced to a term of imprisonment for 3 years and 6 months comprising a NPP of 2 years to commence on 28 February 2020 and to expire on 27 February 2022, and a balance of term of 1 year and 6 months to commence on 28 February 2022 and to expire on 27 August 2023.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Brown; R v Dungay [2020] NSWDC 921
Hearing dates:	23 November 2020
Decision date:	25 November 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Brown: Convicted. Form 1 matter taken into account on sentence. Special circumstances found –to have longer period of supervision within the community to assist him to rehabilitate within the community & to assist him to overcome his use of illegal drugs. The offender is sentenced to a term of imprisonment of 4 years comprising a NPP of 2 years and 6 months to commence on 28 November 2019 and to expire on 27 May 2022 and a balance of term of 1 year and 6 months commencing on 28 May 2022 and expiring on 27 November 2023. Dungay: Convicted. Form 1 matter taken into account. Special circumstances found – longer period of supervision within the community to assist in drug rehabilitation – residential drug rehab program recommended & I note the psychologist’s recommendation that he be housed in minimum security. (Copy psych rpt to be taken into custody with the offender). The offender is sentenced to a term of imprisonment for 3 years and 6 months comprising a NPP of 2 years to commence on 28 February 2020 and to expire on 27 February 2022, and a balance of term of 1 year and 6 months to commence on 28 February 2022 and to expire on 27 August 2023.
Catchwords:	CRIMINAL – sentence - specially aggravated break, enter and steal armed with a dangerous weapon – Form 1 matter in re each offender of conspiracy to commit robbery armed with a dangerous weapon – joint criminal enterprise involving two (other) offenders – objective seriousness - circumstances of aggravation –- subjective matters
Legislation Cited:	CrimesAct1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmyv The Queen (2013) 249 CLR 571 RvFernando (1992) 76 A Crim R 58 RvMillwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Regina Brown, Gregory Andrew Michael Dungay, Wayne
Representation:	Counsel: Dungay: Mr R Hussey Solicitors: Crown: Ms L Hill ODPP Brown: Mr J McKenzie Dungay: Ms B Drinkwater
File Number(s):	Brown: 2019/00375015 Dungay: 2019/00374786