R v Dalton - [2005] NSWCCA 156

CITATION:
Regina v Dalton [2005] NSWCCA 156
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 September 2004

JUDGMENT DATE:

26 April 2005

JUDGMENT OF:
Santow JA at 1; Hislop J at 2; Smart AJ at 3

DECISION:
See para 74 (1)-(3)

CATCHWORDS:
Death of child (almost 2) - Manslaughter by an unlawful and dangerous act - objectively grave criminality - sentence manifestly inadequate even allowing for an overall strong subjective case

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

CASES CITED:
R v Ditford, unrep. 17/3/92 per Hunt CJ at CL
R v Fernando (1992) 76 A Crim R 58
R v Howard [2001] NSWCCA 309
R v Morgan (2003) 57 NSWLR 533
R v Newman, R v Simpson [2004] NSWCCA 102

PARTIES:
Regina v Dennis James Dalton

FILE NUMBER(S):
CCA 2004/1876

COUNSEL:
(C) E Wilkins
(R) H Dhanji

SOLICITORS:
(C) S Kavanagh
(R) S O'Connor

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70019/03

LOWER COURT JUDICIAL OFFICER:
Adams J

2004/1876

SANTOW JA

HISLOP J

SMART AJ

Wednesday, 27 April 2005

R egina v D ennis J ames DALTON

JUDGMENT

1. SANTOW JA: I agree with Smart AJ

2. HISLOP J: I agree with Smart AJ.

3. SMART AJ: The Director of Public Prosecutions appeals against a sentence of 7 years imprisonment with a non-parole period of 3 years 3 months imposed upon the offender on a charge of manslaughter of the male child of his de facto to which he had pleaded guilty. The agreed basis of the plea was that the offender caused the child's death by an unlawful and dangerous act. The Director contends that the sentence is manifestly inadequate.

4. In January 2002 the offender, then aged 18, and AK, then aged 17, were living together in a flat at Casino in a de facto relationship with AK's two children, a male child born 23 January 2000 and almost two years of age, and a female baby born on 26 November 2001. The male child's natural father was serving a prison sentence in Queensland.

5. The mother and the offender both lied to the police when they were interviewed on 17 January 2002, the day of the infliction of the fatal injuries and the day of the admission of the child to hospital. Eventually, on 22 July 2003, the mother told the police in detail of the events immediately leading up to the ultimately fatal injury to the child. The mother was in the laundry and heard the child screaming. She ran into his bedroom:

"I ran in there and saw DJ [the offender] had him up on the window sill holding him by the shoulders. DJ wanted him to jump and he would let go of him. DJ said, 'I want him to jump.' I said, 'Can't you see he's scared, he's shaking.' [The child] started screaming louder and DJH grabbed his…

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 Dalton

Details

AGLC: R v Dalton [2005] NSWCCA 156
Case: [2005] NSWCCA 156
Decision Date: 26 April 2005

CaseChat Overview and Summary

The appeal arose from a conviction for manslaughter by an unlawful and dangerous act, following the death of a child aged almost two years. The respondent, Dalton, was sentenced to a term of imprisonment which the Crown submitted was manifestly inadequate. The appeal against sentence was heard in the High Court of Australia. The Crown argued that the sentence was manifestly inadequate, given the objective gravity of the crime and the subjective factors that may have mitigated Dalton's culpability.

The central issue for the court was whether the sentence imposed was manifestly inadequate, considering the objective gravity of the offence and the subjective factors relevant to Dalton's culpability. The court had to weigh the Crown's submission that the sentence was inadequate against the judge's assessment of the circumstances and the overall subjective case for Dalton. The court had to determine whether the sentence imposed was manifestly inadequate, taking into account both the objective gravity of the crime and the subjective factors that may have mitigated Dalton's culpability.

The court acknowledged the objective gravity of the offence, given that the death of a young child was caused by an unlawful and dangerous act. However, the court also considered the subjective factors relevant to Dalton's culpability, including his remorse, the impact of the incident on him, and other personal circumstances. The court concluded that while there was a strong subjective case for Dalton, the sentence imposed was still manifestly inadequate. The court noted that the sentencing judge had considered the subjective factors but had not given sufficient weight to the objective gravity of the crime. The court found that the sentence was manifestly inadequate and remitted the matter to the sentencing judge for reconsideration.

The court did not provide specific orders but directed that the matter be remitted to the sentencing judge for reconsideration, taking into account both the objective gravity of the crime and the subjective factors relevant to Dalton's culpability. The court emphasised the need for the sentencing judge to ensure that the sentence imposed was not manifestly inadequate, given the circumstances of the case.

Orders