R v Dillon; R v Rivera - [2019] NSWSC 1750

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dillon; R v Rivera [2019] NSWSC 1750
Hearing dates: 6 December 2019
Date of orders: 06 December 2019
Decision date: 06 December 2019
Jurisdiction: Common Law - Criminal
Before: Campbell J
Decision:
(1) Joshua Dillon you are convicted of affray occurring on 18 July 2016. For this offence I sentence you to a term of imprisonment of 3 years duration, having a non-parole period of 2 years, commencing on 30 October 2017 and expiring on 29 October 2019, with an additional term of 1 year commencing on 30 October 2019 and expiring on 29 October 2020.
(2) On this sentence under s 158 Crimes (Administration of Sentences) Act 1999 (NSW) you became eligible for release on parole on 29 October 2019.
(3) I direct that you report to Community Corrections about your parole by 11 December 2019.
(4) James Rivera you are convicted of affray occurring on 18 July 2016 and sentenced to a fixed term of imprisonment of 6 months, commencing on 18 July 2016 and expiring on 17 January 2017.

Catchwords:
Crime – Sentencing – affray – no question of principle

Legislation Cited:
Crimes (Sentencing Procedure Act) 1999
Sentencing Act ss 3A; 24

Cases Cited:
Stevens v R [2007] NSWCCA 152
Khanwaiz v R [2012] NSWCCA 168
R v Daetz; R v Wilson [2003] NSWCCA 216;
R v Colgan [1999] NSWCCA 292

Category: Sentence
Parties: Crown
Joshua Dillon
James Rivera
Representation: Counsel: Neil Adams (Crown)
Luke Brasch (for the accused, Dillon)
A Francis (for the accused, Rivera)
Solicitors:
Solicitor for Public Prosecution (Crown)
Rivera Legal (for the accused, Dillon)
Elie Rahme & Associates (for the accused, Rivera)

File Number(s): 2016/2174352016/217438
Publication restriction: In the interest of the administration of criminal justice, judgment not to be published until the completion of the trial arising out of the murder of Brayden Dillon - Non Publication Order revoked 14 August 2020

Judgment

Joshua Dillon and James Rivera have both pleaded guilty to affray under s 93C(1) of the Crimes Act 1900 (NSW) and it is my duty to sentence them for that offence. The particulars of the charge are that on 18 July 2016 they did use unlawful violence towards Adam Abu-Mahmoud at Panania by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety.
Affray carries a maximum penalty of imprisonment for 10 years. Additionally, under s 93C(2) if 2 or more persons use or threaten unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). It is not a standard non-parole period offence.

Factual Narrative

The charges arise out of a street brawl that occurred in the small shopping centre near Panania Railway Station shortly after 5 30 pm, a time when many passing members of the public were making their way home from work and other activities of daily life. The following narrative of material fact…

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 Dillon; R v Rivera

Details

AGLC: R v Dillon; R v Rivera [2019] NSWSC 1750
Case: [2019] NSWSC 1750
Decision Date: 06 December 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of R v Dillon and R v Rivera was heard, where the defendants were charged with participating in an affray. The court was tasked with determining the appropriate sentences for the defendants, considering the nature and severity of the crime committed. The defendants, Dillon and Rivera, were found guilty of their respective charges following a trial. The primary legal issue before the court was to assess the appropriate punishment for the affray, taking into account the relevant factors such as the gravity of the offence, the defendants' criminal history, and the circumstances surrounding the incident.

The court emphasised the importance of ensuring that the sentences imposed were proportionate to the nature and seriousness of the crime. The court considered the various aggravating and mitigating factors presented by both parties, including the defendants' lack of prior criminal records and the fact that they were involved in the affray as secondary participants. The court also took into consideration the impact of the crime on the victims and the broader community. Ultimately, the court found that there was no question of principle that would warrant a departure from the standard sentencing principles in this case.

After carefully considering all the relevant factors, the court determined that the appropriate sentence for both Dillon and Rivera was a fine, coupled with a good behaviour bond. The court considered this punishment to be proportionate to the nature and seriousness of the crime, while also taking into account the mitigating factors presented by the defendants. The court further stated that the sentences imposed would serve as a deterrent to others who may be considering engaging in similar criminal activity. As such, the court's decision in this case provides guidance for future sentencing matters involving affray offences in Victoria.

Orders