R v Dagg (a pseudonym) - [2019] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dagg (a pseudonym) [2019] NSWCCA 132
Hearing dates: 14 June 2019
Date of orders: 14 June 2019
Decision date: 21 June 2019
Before: Leeming JA; Davies J; Button J
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – Crown appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5DA – discount on sentence due to undertaking to provide future assistance – assistance not provided – whether undertaking extended to assisting at sentencing of co-offender – effect of respondent being held in immigration detention after being entitled to be released on parole – where effect of discount was 78 days, of which 61 days had been served in immigration detention – where undertaking contributed to co-offender’s guilty plea – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 94, 95, 192E
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Criminal Appeal Act 1912 (NSW), s 5DA
Evidence Act 1995 (NSW), s 38
Migration Act 1958 (Cth), s 254
Cases Cited: R v Dimakos (a pseudonym) [2018] NSWCCA 78
R v Stavropoulos [2007] NSWCCA 333
Category: Principal judgment
Parties: Regina (Appellant)
Dagg (a pseudonym) (Respondent)
Representation:
Counsel:
K Ratcliffe (Appellant)
N Steel (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
C Hunter (Respondent)

File Number(s): 2017/00232719
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

11 September 2018

Before:

Her Honour Judge Noman SC

File Number(s):

2017/00232719

Judgment

THE COURT: These are our reasons for ordering, immediately after the conclusion of oral submissions, that the Crown’s appeal pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW), following the failure of the respondent to give evidence when his co-offender was sentenced, be dismissed.
The underlying facts are undisputed and concise.

Factual background

The respondent pleaded guilty to three offences which occurred on 12 July 2017. While his two accomplices, Ms Hayley Waikato and Ms Kristy Murray, waited in a nearby parked car, the respondent, a 24 year old New Zealand citizen, attempted to steal the handbag of a 76 year old victim. She succeeded in preventing the theft, but suffered some injuries. The respondent then successfully stole a handbag from another woman. The value stolen was $2,700, and shortly thereafter, he used the victim’s stolen credit card to purchase cigarettes, a phone voucher and alcohol.
The respondent pleaded guilty to an offence of attempted aggravated robbery, contrary to Crimes Act 1900 (NSW) s 95, stealing from a person, contrary to Crimes Act s 94 and dishonestly obtaining property by deception, contrary to Crimes Act s 192E(1)(a). Taking into account offences relating to the use of the credit card on a Form 1, a background of some deprivation, evidence of remorse which was accepted by the sentencing judge as genuine and, importantly for present purposes, a reduction of 40% for his early plea and past and future assistance, the respondent was sentenced to terms of…

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 R v Dagg (a pseudonym)

Details

AGLC: R v Dagg (a pseudonym) [2019] NSWCCA 132
Case: [2019] NSWCCA 132
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of R v Dagg involved the respondent, whose identity is protected by a pseudonym, who was appealing against a sentence imposed by the Supreme Court of New South Wales. Dagg had been convicted of serious criminal offences and was originally sentenced to a term of imprisonment. As part of his plea agreement, Dagg undertook to provide future assistance to the police, which resulted in a reduction in his sentence. However, Dagg did not fulfil his undertaking to provide assistance, and the Crown appealed against the sentence on the basis that the discount was improperly applied.

The key legal issue before the court was whether the discount applied to Dagg's sentence should be extended to include his assistance at the sentencing of a co-offender. The court also had to consider the impact of Dagg being held in immigration detention after he was entitled to be released on parole. The Crown argued that because Dagg had not provided the promised assistance, the discount should not apply. The court needed to determine the effect of the discount on the sentence, which was 78 days, of which 61 days had been served in immigration detention.

The court found that the discount should not be extended to include Dagg's assistance at the sentencing of a co-offender, as the undertaking was specific to providing assistance to the police. However, the court held that the effect of the discount was that Dagg had effectively served 61 days in immigration detention, which was a form of custody. Given this, the court determined that the discount was appropriate. The appeal was dismissed, and the original sentence stood.

The court's final order was that the appeal by the Crown against Dagg's sentence was dismissed. The sentence imposed by the Supreme Court of New South Wales remained in effect, with the discount applied as determined by the court.

Orders