R v Dowell; R v Hearne - [2015] NSWDC 320

District Court

New South Wales

Medium Neutral Citation: R v DOWELL; R v HEARNE [2015] NSWDC 320
Hearing dates: 27/07/2015
Decision date: 29 July 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Dowell -
Aggravated break enter:- Sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months.
s 7A Firearms Act - Sentenced to a term of imprisonment of 12 months.
s 166 certificate offences: - Sentenced to a term of imprisonment of 9 months. Fined $500.00
Hearne -
Aggravated break enter:- Sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year.
s 7A Firearms Act, for each charge - Sentenced to a term of imprisonment of 12 months.
s 7 Firearms Act - Sentenced to a term of imprisonment of 12 months with a non-parole period of 6 months

Catchwords: Criminal – Sentence, break and enter, larceny in circumstances of aggravation - in company of the other, early plea, unlawfully possess firearm, theft of firearms from rural property, parity, mental health issues, standard non parole periods.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Firearms Act 1996
Cases Cited: DPP v De La Rosa [2010] NSWCCA 194
Harris v R [2007] NSWCCA 130
R v Henry [1999] NSWCCA 107
Huynh v R [2005] NSWCCA 220
Jimmy v R (2010) 77 NSWLR 540
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
R v Ponfield (1999) 48 NSWLR 327
R v Postiglione (1998) 189 CLR 295
R v Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: Director of Public Prosecutions – Crown
Thomas Dowell - Offender
James Robert Hearne - Offender
Representation:
Counsel:
Mr King – Mr Hearne
Solicitors:
Director of Public Prosecutions – Crown
Legal Aid – Mr Dowell

File Number(s): 2014/00370847; 2014/00370712

SENTENCE

HIS HONOUR: Thomas Dowell and James Robert Hearne appear today for sentence in relation to one charge which is common to both of them and clearly is the most serious charge to which they have admitted their guilt. That charge alleges that they, between 24 November 2014 and 13 December 2014 at Cootamundra in the state of New South Wales, did break and enter the dwelling house of Mark Kingwall situate at Eloula, 1088 Back Brawling Road, Cootamundra, and then in the said dwelling house did commit a serious indictable offence, to wit larceny in circumstances of aggravation, to wit they were each in company of the other.
This is an offence contrary to s 112(2) Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment, has a standard non-parole period of five years imprisonment.
The two offenders have other charges for sentencing in each case emerging substantially from the same facts.
In respect of Mr Dowell he was also committed for sentence for an offence contrary to s 7A Firearms Act 1996 of possessing a firearm, to wit an air rifle,…

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 Dowell; R v Hearne

Details

AGLC: R v Dowell; R v Hearne [2015] NSWDC 320
Case: [2015] NSWDC 320
Decision Date: 29 July 2015

CaseChat Overview and Summary

The two respondents, Dowell and Hearne, were convicted of various criminal offences, including break and enter, larceny, and unlawful possession of firearms. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was the determination of the appropriate sentences for the respondents considering their respective roles in the crimes, their backgrounds, and the mitigating factors presented.

The court was tasked with balancing the severity of the crimes committed with the mitigating factors such as the respondents' early pleas and the presence of mental health issues. Additionally, the court had to consider the principle of parity in sentencing, ensuring that the sentences were commensurate with similar offences and offenders. The court also took into account the standard non-parole periods applicable to the specific charges.

The court meticulously analysed the evidence and submissions before imposing sentences that reflected the gravity of the offences and the respondents' backgrounds. Dowell was sentenced to a total term of imprisonment of 5 years and 3 months, with non-parole periods set at 1 year and 9 months for the aggravated break and enter charge, and 6 months for the firearms-related charges. Hearne received a sentence of 4 years and 3 months, with a non-parole period of 1 year for the aggravated break and enter charge, and 6 months for the firearms-related charges. Both respondents were also subject to fines and ordered to comply with other conditions as deemed necessary by the court.

Orders

Orders of the court

Dowell -

Aggravated break enter:- Sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months.

s 7A Firearms Act - Sentenced to a term of imprisonment of 12 months.

s 166 certificate offences: - Sentenced to a term of imprisonment of 9 months. Fined $500.00

Hearne -

Aggravated break enter:- Sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year.

s 7A Firearms Act, for each charge - Sentenced to a term of imprisonment of 12 months.

s 7 Firearms Act - Sentenced to a term of imprisonment of 12 months with a non-parole period of 6 months

Background

Background to the litigation

Full text does not contain this section.

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 DOWELL; R v HEARNE [2015] NSWDC 320
Hearing dates:	27/07/2015
Decision date:	29 July 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Dowell - Aggravated break enter:- Sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months. s 7A Firearms Act - Sentenced to a term of imprisonment of 12 months. s 166 certificate offences: - Sentenced to a term of imprisonment of 9 months. Fined $500.00 Hearne - Aggravated break enter:- Sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year. s 7A Firearms Act, for each charge - Sentenced to a term of imprisonment of 12 months. s 7 Firearms Act - Sentenced to a term of imprisonment of 12 months with a non-parole period of 6 months
Catchwords:	Criminal – Sentence, break and enter, larceny in circumstances of aggravation - in company of the other, early plea, unlawfully possess firearm, theft of firearms from rural property, parity, mental health issues, standard non parole periods.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Firearms Act 1996
Cases Cited:	DPP v De La Rosa [2010] NSWCCA 194 Harris v R [2007] NSWCCA 130 R v Henry [1999] NSWCCA 107 Huynh v R [2005] NSWCCA 220 Jimmy v R (2010) 77 NSWLR 540 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 R v Ponfield (1999) 48 NSWLR 327 R v Postiglione (1998) 189 CLR 295 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecutions – Crown Thomas Dowell - Offender James Robert Hearne - Offender
Representation:	Counsel: Mr King – Mr Hearne Solicitors: Director of Public Prosecutions – Crown Legal Aid – Mr Dowell
File Number(s):	2014/00370847; 2014/00370712