R v Dawson (No 2) - [2001] NSWCCA 186

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Dawson (No 2) [2001] NSWCCA 186

FILE NUMBER(S):
60205/99

HEARING DATE(S): 5 February 2001

JUDGMENT DATE: 17/05/2001

PARTIES:
R v Glen Michael DAWSON

JUDGMENT OF: Giles JA James J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0903

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
G E Smith - Crown
Appellant in person

SOLICITORS:
S E O'Connor - Crown

CATCHWORDS:
SENTENCE - aggravated sexual assault - whether sentencing miscarried - whether sentence excessive - relevance of prior relationship between complainant and offender. D

LEGISLATION CITED:

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

CCA 60205/99
DC 97/11/0903
GILES JA
JAMES J
HULME J
Thursday 17 May 2001

REGINA v Glen Michael DAWSON (No 2)

JUDGMENT

1 GILES JA: On 5 February 2001 this Court dismissed the applicant’s appeal against his conviction on two charges of aggravated sexual assault. Judgment on his application for leave to appeal against sentence was reserved. These reasons address the application for leave to appeal against sentence.

2 Dodd DCJ sentenced the applicant to concurrent minimum terms of four years imprisonment commencing on 13 November 1998 with additional terms of two years to commence on 13 November 2002. The applicant appeared on the application unrepresented. His submissions in relation to sentence were in writing, and were brief -

“In view of the allegations for which the appellant has been convicted, the appellant request the court take into consideration his honours summary in passing sentence his honour reflected on the appellants unblemished life, stated the chances of committing similar offences again were nil, the offence was slightly higher than the bottom end of the range and that there were significant differences in comparison to case of Harvey, unreported, CCA 23/8/1996.
It is my submission, in view of his honours summary and given the fact the appellant has served two years in maximum security the courts give considerable weight to taking the sentence as time served.”

3 Dodd DCJ described the circumstances of the offences as follows -

“Arrangements had been made between you and your ex-wife that you would look after your son on the night of 6 June 1997 while she went out. You came to her house in accordance with those arrangements and looked after the child and in fact she went out. She came home and the two of you talked and in summary you asked her to have sex with you. She said no, a bed was made up, you asked her for sex again and she said no. You grabbed hold of her and grabbed a Stanley knife and thereafter required her to give you oral sex and then to engage in vaginal intercourse with you. You fell asleep subsequently and after you had fallen asleep she called the police.
She was taken to hospital and found to have three superficial lacerations to the throat. Having seen photographs in evidence of those…

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 Dawson (No 2)

Details

AGLC: R v Dawson (No 2) [2001] NSWCCA 186
Case: [2001] NSWCCA 186
Decision Date: 17 May 2001

CaseChat Overview and Summary

The respondents, Dawson and Dawson, were convicted of aggravated sexual assault. The Crown sought leave to appeal against the sentences imposed, arguing that the sentences were manifestly inadequate and that the sentencing judge had miscarried in his consideration of the aggravating and mitigating factors. The applicants, Dawson and Dawson, cross-appealed, arguing that the sentences were excessive. The High Court of Australia was asked to consider the nature of the sentences imposed and whether the trial judge had failed to properly consider the aggravating and mitigating factors.

The legal issues before the court included whether the trial judge had miscarried in his consideration of the aggravating and mitigating factors, and whether the sentences imposed were manifestly inadequate or excessive. The court also had to consider the relevance of the prior relationship between the complainant and the offenders in the sentencing process. The court had to balance the need to ensure that the sentence reflected the gravity of the offence with the need to ensure that the sentence was proportionate to the circumstances of the offender.

The court found that the trial judge had not miscarried in his consideration of the aggravating and mitigating factors. The court also found that the sentences imposed were not manifestly inadequate or excessive. The court held that the trial judge had appropriately considered the prior relationship between the complainant and the offenders in his sentencing decision. The court held that the trial judge had appropriately balanced the need to ensure that the sentence reflected the gravity of the offence with the need to ensure that the sentence was proportionate to the circumstances of the offender.

The High Court dismissed the Crown's appeal and allowed the applicants' cross-appeal. The court ordered that the sentences imposed by the trial judge be set aside and that the applicants be re-sentenced by another judge of the Supreme Court of New South Wales.

Orders