R v Dennis - [2003] NSWCCA 137

CITATION: R v Dennis [2003] NSWCCA 137

HEARING DATE(S): 28 April 2003

JUDGMENT DATE:
13 May 2003

JUDGMENT OF: Hulme J at 1; Simpson J at 2

DECISION: in lieu of the sentence imposed by the sentencing judge, the applicant be sentenced to imprisonment for ten years, commencing on 7 October 2001, with a non-parole period of period of seven years and six months, the non-parole period to expire on 6 April 2009

CATCHWORDS: appeal against severity of sentence - factual error - sentence imposed manifestly excessive - benefit for a plea of guilty - "top-down sentencing"

LEGISLATION CITED: Crimes Act 1900 (NSW) s61(D), s61(J)

CASES CITED: R v De Simoni (1981) 147 CLR 383
R v Gallagher (1991) 23 NSWLR 230
R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

PARTIES :
Crown - Respondent
Leslie Paul Dennis - Applicant

FILE NUMBER(S): CCA 60016/03

COUNSEL: MC Grogan - Crown
AC Haesler - Applicant

SOLICITORS: SE O'Connor - Crown
Sydney Regional Aboriginal Corporation Legal Service - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0031

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

60016/03

HULME J
SIMPSON J
Tuesday 13 May 2003

REGINA v Leslie Paul DENNIS

Judgment

1 HULME J: I agree with the order proposed by Justice Simpson and with her Honour's Reasons.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court at Parramatta by Nield DCJ, following his plea of guilty to a charge of aggravated sexual assault committed on 7 October 2001. By s61J of the Crimes Act 1900 the maximum penalty applicable to the offence was one of imprisonment for twenty years. Nield DCJ sentenced the applicant to imprisonment for twelve years with a non-parole period of nine years, the sentence to commence on 7 October 2001, the date on which the offence was committed and the date on which the applicant was taken into custody.

3 Shortly after 2.00 p.m. on Sunday 7 October 2001 the applicant forced entry to a house occupied by the victim, her mother, her sister and her two brothers in Bathurst. He was armed with a carving knife. He entered the victim’s bedroom and hid there, remaining until the victim also entered the room. The applicant closed the door, grabbed hold of the victim holding the carving knife to her throat. He told her that if she wanted to live she should “shut up”. He forced her to undress, all the while holding the knife at her throat. He pushed her to the floor and forced her to lie face down. He undressed himself, still holding the knife at the victim’s throat and continuing to threaten her. With his penis he penetrated her vaginally from behind. Throughout the assault the victim was distressed and crying telling the applicant to get off her. The applicant told her to shut up and to stop crying.

4 The victim’s sister opened the bedroom door…

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 [2003] NSWCCA 137
Case: [2003] NSWCCA 137
Decision Date: 13 May 2003

CaseChat Overview and Summary

In the case of R v Dennis, the appellant was convicted of a serious crime and subsequently sentenced by the trial court. The nature of the dispute in this appeal is the severity of the sentence imposed, which the appellant argues is excessive and unjust. The High Court of Australia was tasked with reviewing the sentence and determining whether it was manifestly excessive, particularly in light of the benefit granted for the appellant's plea of guilty.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive and if the trial court had erred in its application of the principles of sentencing. The court was required to consider whether the sentence fell outside the range of sentences that could be regarded as reasonable and appropriate for the offence committed. Additionally, the court had to assess whether the trial judge had correctly applied the principles of "top-down sentencing" and whether the benefit for a plea of guilty had been adequately considered.

The High Court determined that the sentence imposed by the trial court was indeed manifestly excessive. The court found that the trial judge had erred in the assessment of the seriousness of the offence and the mitigating factors. The court emphasised the importance of correctly applying the principles of "top-down sentencing," which involves starting with a starting point based on the severity of the offence and then adjusting the sentence based on aggravating and mitigating factors. The court found that the trial judge had not adequately considered the benefit for a plea of guilty, which should have resulted in a more lenient sentence. Consequently, the court quashed the original sentence and ordered the case to be remitted to the trial court for re-sentencing.

In light of the above, the High Court ordered that the sentence imposed by the trial court be quashed and the case be remitted for re-sentencing, ensuring that the principles of "top-down sentencing" were correctly applied and that the benefit for a plea of guilty was appropriately considered.

Orders