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R v Dennis

R v Dennis

Case [2015] NSWCCA 297 4 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Dennis [2015] NSWCCA 297
Hearing dates: 16 November 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Before: Johnson J   at [1]
Beech-Jones J   at [5]
R.S. Hulme AJ   at [63]
Decision:
(1)   Leave to appeal be granted; and
(2)   The appeal be dismissed.

Catchwords: SENTENCE APPEAL – applicant robbed passenger on a public train by cutting his throat – applicant on parole at time of offence – significant criminal record – sentence of eleven years with non-parole period of eight years and three months – offence of robbery while armed and inflict grievous bodily harm – standard non-parole period of seven years imprisonment – whether sentencing judge erred in assessment of objective seriousness – whether judge erred in using similarity with previous offence to determine whether offence was planned or premeditated – whether breach of procedural fairness by sentencing judge – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.
Legislation Cited: - Crimes Act 1900 (NSW) – s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A, s 54A
- Evidence Act 1995 (Cth) – s 4(3)
Cases Cited: - Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Button v R [2010] NSWCCA 264
- Dang v R [2014] NSWCCA 47
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, Re [2003] HCA 6; 214 CLR 1
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Mulato v R [2006] NSWCCA 282
- R v Chisari [2006] NSWCCA 19
- R v Ibrahami [2005] NSWCCA 153
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Pham [2015] HCA 39
- Tweedie v R [2015] NSWCCA 71
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Weir v R [2011] NSWCCA 123
Category: Principal judgment
Parties: Shane Barry Dennis – Applicant
Crown – Respondent
Representation:
Counsel:
W. Hunt, J. Paingakulam – Applicant
E. Balodis – Respondent
Solicitors:
Proctor & Associates – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2012/270220
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

16 May 2014

Before:

Knox SC DCJ

Judgment

JOHNSON J: I agree with the orders proposed by Beech-Jones J and his Honour's reasons for those orders.
I wish to make one additional observation. The Applicant's offence was a most serious example of a crime of violence committed against a citizen who was using the public transport system at night. At the time of this offence, the Applicant was on parole for an offence of violence committed against other citizens who were using public transport.
This Court has emphasised that crimes of violence in these circumstances warrant severe punishment, and that “persons who are required to use public…

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 Dennis

Details

AGLC: R v Dennis [2015] NSWCCA 297
Case: [2015] NSWCCA 297
Decision Date: 04 December 2015

CaseChat Overview and Summary

The applicant in this case appealed against a sentence handed down by the Supreme Court of New South Wales. The applicant, Dennis, was found guilty of robbing a passenger on a public train by cutting his throat. Dennis was on parole at the time of the offence and had a significant criminal history. The court imposed a sentence of eleven years imprisonment, with a non-parole period of eight years and three months. The primary legal issues before the court were whether the sentencing judge erred in assessing the objective seriousness of the offence, whether the judge erred in using the similarity with a previous offence to determine if the offence was planned or premeditated, whether there was a breach of procedural fairness by the sentencing judge, and whether the sentence was manifestly excessive.

The court found that the sentencing judge did not err in assessing the objective seriousness of the offence. The court held that the judge was entitled to take into account the fact that the applicant was on parole at the time of the offence and had a significant criminal history. The court also found that the judge did not err in using the similarity with a previous offence to determine if the offence was planned or premeditated. The court held that the judge was entitled to take into account the similarity between the two offences in assessing whether the offence was planned or premeditated. The court further held that there was no breach of procedural fairness by the sentencing judge. The court found that the judge had not acted in a biased or capricious manner in imposing the sentence. Finally, the court held that the sentence was not manifestly excessive. The court found that the sentence was within the range of sentences that could be imposed for the offence and that the sentence reflected the seriousness of the offence and the applicant's criminal history.

The appeal was dismissed, and the sentence was upheld. The court held that the sentence was appropriate and that there were no grounds for interference. The court found that the sentencing judge had carefully considered all the relevant factors in imposing the sentence and that the sentence was not manifestly excessive. The appeal was dismissed, and the sentence was upheld. The applicant's conviction and sentence remain in place.

Orders