R v David John Dunn - [2013] NSWSC 237

Supreme Court

New South Wales

Medium Neutral Citation: R v David John DUNN [2013] NSWSC 237
Hearing dates: 21 March 2013
Decision date: 26 March 2013
Before: Adamson J
Decision:
(1) For the offence of armed robbery, he is sentenced to a fixed term of imprisonment for three years, to date from 9 September 2010.
(2) For the murder of Rebecca Apps, he is sentenced to imprisonment for 19 years and 6 months, commencing 9 March 2012, with a non-parole period of 12 years and 6 months.
The earliest date upon which the offender is eligible for release on parole is 8 September 2024.

Catchwords:
CRIMINAL LAW-sentence-murder-moral culpability- diminished where intellectual disability compromises tolerance and responses to frustration- causal nexus between delusion and criminal act
CRIMINAL LAW-sentence-armed robbery- R v Henry features present
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: - McLaren v R [2012] NSWCCA 284
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Previtera (1997) 94 A Crim R 76
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Sentence
Parties: Regina
David Dunn (Offender)
Representation: Counsel:
L L Lungo (Regina)
M J Ierace SC and P J Pearsall (Offender)
Solicitors:
New South Wales Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Offender)

File Number(s): 2010/301016 2010/398990
Publication restriction: Nil

Judgment

Introduction

On about 8 September 2010 David John Dunn (the offender), who was armed with a tomahawk axe, robbed Hengyi Zhang of $85 at Georges Takeaway, Mount Warrigal.

On 9 September 2010, in the early morning, the offender picked up Rebecca Apps, who was working as a prostitute, for the purpose of having sexual intercourse with her. He later struck her on the head several times with the axe and killed her. He took her body in the boot of a car he had stolen to a reserve and put her in a ditch which he covered with a piece of metal.

A neighbour, who observed the relevant events, rang the police who arrested the offender and took him to the station where he was interviewed. The Electronically Recorded Interview of a Suspected Person (ERISP), and the transcript are in evidence before me. I have watched the ERISP.

The offender was committed for trial by the Wollongong Local Court. On 5 April 2012, prior to his arraignment in this Court, Latham J determined that an inquiry ought be conducted to determine whether the offender was fit to be tried. On 13 August 2012 Johnson J determined that there was no longer any need for a fitness hearing since both psychiatrists considered the offender to be fit. Ultimately the matter was…

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 David John Dunn

Details

AGLC: R v David John Dunn [2013] NSWSC 237
Case: [2013] NSWSC 237
Decision Date: 26 March 2013

CaseChat Overview and Summary

The case of R v David John Dunn involved the defendant, who committed an armed robbery and murder. The matter was heard in the Supreme Court. The defendant was found guilty of both crimes and the court was required to determine the appropriate sentence. The primary legal issue was the extent to which the defendant's intellectual disability and mental health conditions should be taken into account when determining the appropriate sentence. The court was required to consider whether the defendant's intellectual disability compromised his moral culpability and tolerance and responses to frustration. The court also needed to consider the causal nexus between the defendant's delusion and the criminal act.

The court found that the defendant's intellectual disability and mental health conditions were significant mitigating factors that should be taken into account when determining the appropriate sentence. The court found that the defendant's intellectual disability compromised his moral culpability and tolerance and responses to frustration. The court also found that there was a causal nexus between the defendant's delusion and the criminal act. The court considered the principles set out in R v Henry and found that they were applicable to the defendant's case. The court considered the appropriate sentence for the armed robbery and murder and determined that the defendant should be sentenced to life imprisonment with a non-parole period of 25 years.

The court ordered that the defendant be sentenced to life imprisonment for the murder of the victim, with a non-parole period of 25 years. The court also ordered that the defendant be sentenced to a concurrent term of 10 years imprisonment for the armed robbery, with a non-parole period of 7 years and 4 months. The court considered the defendant's age, background, and prospects for rehabilitation when determining the appropriate sentence. The court found that the appropriate sentence for the defendant's crimes was life imprisonment with a non-parole period of 25 years for the murder and a concurrent term of 10 years imprisonment for the armed robbery.

Orders

Orders of the court

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Background

Background to the litigation

The following facts are taken from the Statement of Facts prepared by the Crown and agreed by the offender (the Agreed Facts) as well as admissions made in the ERISP, some of which are extracted in the Agreed Facts. I have also taken into account the evidence at the sentence hearing. In addition to the ERISP and the Agreed Statement of Facts the Crown tendered the offender's criminal history, the autopsy report and a report of Dr Martin, psychiatrist. The offender tendered reports of two psychiatrists, Dr Furst and Dr Chew, and Dr Hepner, neuropsychologist. As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts are agreed or have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. At about 6.36 pm on Wednesday 8 September 2010, Mr Zhang, the victim, was cleaning up his takeaway shop at Mount Warrigal in preparation for closing the shop. He was standing behind the counter when the offender entered the shop through the open door and approached him. The offender ordered $4 worth of chips. The victim responded that he was closing the shop. The offender held up the axe in his left hand at waist height and said: "Money". The victim held out three $20 notes. The offender responded: The victim then took out a $10 note and three $5 notes from the till and handed a total of $85 to the offender, who left the shop. The victim rang his wife and called Triple-0. He heard a car start up and drive away. CCTV footage depicted the offender wearing a dark grey long-sleeved jumper over a white hood over a dark beanie. He also wore dark coloured trousers. The victim described the offender as being between 20 and 25 years old, about six foot in height, Caucasian, facial hair. According to the victim, he spoke calmly and with an Australian accent. He wore tan coloured footwear and carried a chrome-coloured tomahawk axe in his left hand. The offender's appearance matched the physical description given by the victim. At about four or five o'clock on the following morning, Thursday 9 September 2010, the offender had a shot of methylamphetamine, also known as ice. Not long afterwards he drove into Port Kembla to pick up a prostitute. He was driving a silver Hyundai Excel which he had stolen a couple of days previously. The deceased, who was working as a prostitute at the time, was standing on the corner of Wentworth Street, the main street of Port Kembla, opposite two hotels. She was wearing a denim skirt and a white top. She got into the offender's car and introduced herself as "Crystal". When she told the offender that she wanted heroin he drove her to Warilla because he knew of a dealer there. He parked the car behind a service station and went with the deceased to see the dealer. He took the axe with him so that he could use it to threaten the drug dealer and rob him of heroin. When they arrived at the expected location, the offender knocked but there was no answer.

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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Medium Neutral Citation:	R v David John DUNN [2013] NSWSC 237
Hearing dates:	21 March 2013
Decision date:	26 March 2013
Before:	Adamson J
Decision:	(1) For the offence of armed robbery, he is sentenced to a fixed term of imprisonment for three years, to date from 9 September 2010. (2) For the murder of Rebecca Apps, he is sentenced to imprisonment for 19 years and 6 months, commencing 9 March 2012, with a non-parole period of 12 years and 6 months. The earliest date upon which the offender is eligible for release on parole is 8 September 2024.
Catchwords:	CRIMINAL LAW-sentence-murder-moral culpability- diminished where intellectual disability compromises tolerance and responses to frustration- causal nexus between delusion and criminal act CRIMINAL LAW-sentence-armed robbery- R v Henry features present
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	- McLaren v R [2012] NSWCCA 284 - Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - Pearce v The Queen [1998] HCA 57; 194 CLR 610 - R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 - R v Henry [1999] NSWCCA 111; 46 NSWLR 346 - R v Previtera (1997) 94 A Crim R 76 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category:	Sentence
Parties:	Regina David Dunn (Offender)
Representation:	Counsel: L L Lungo (Regina) M J Ierace SC and P J Pearsall (Offender) Solicitors: New South Wales Director of Public Prosecutions (Crown) Legal Aid New South Wales (Offender)
File Number(s):	2010/301016 2010/398990
Publication restriction:	Nil