R v Dudgeon - [2002] NSWCCA 41

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Dudgeon [2002] NSWCCA 41

FILE NUMBER(S):
60270/00

HEARING DATE(S): 1/2/2002

JUDGMENT DATE: 01/02/2002

PARTIES:
Regina
Adam Jason Dudgeon

JUDGMENT OF: Ipp AJA Grove J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0208

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
Ms DJ Forbes- Applicant
Dr PJP Power- Crown

SOLICITORS:
SE O'Connor- Crown

CATCHWORDS:
Application for Leave to appeal against severity of sentence
Robbery
Sentencing principles
Totality
Special circumstances

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Application dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60270/00
IPP AJA
GROVE J
DOWD J
1 February 2002

R v Adam Jason DUDGEON

Judgment

IPP AJA: I will ask Dowd J to deliver the first judgment.
DOWD J: The applicant seeks leave to appeal against sentences imposed on him on 23 April 2001 by Coolahan DCJ in Newcastle. The applicant pleaded guilty to four counts of Robbery contrary to ss95, 97 and 114 of the Crimes Act 1900 (‘the Act’), and was sentenced to a total cumulative term of seven years imprisonment, commencing from 20 January 2002 to expire on 19 January 2007, with a non-parole period of five years and six months to expire on 19 July 2005.
On the first count, the applicant pleaded guilty on 11 August 2000 at Newcastle to a count of aggravated robbery with corporal violence contrary to s95 of the Act, with the Learned Sentencing Judge taking into account two matters of being armed with intent to commit an indictable offence (Larceny) on a Form 1, contrary to s114 of the Act. The applicant was sentenced to six years imprisonment, commencing from 20 January 2000 to expire on 19 January 2006, with a non-parole period of four years and six months to expire on 19 July 2004. That offence carries a maximum penalty of twenty years imprisonment.
On the second count, which alleged armed robbery with an offensive weapon contrary to s97 of the Act, the applicant was sentenced to five years imprisonment, to commence on 20 January 2002 and to expire on 19 January 2005. The maximum penalty is twenty years.
On the third count of robbery whilst armed with an offensive weapon, contrary to s97 of the Act, the applicant was sentenced to a fixed term of five and a half years imprisonment, to commence on 20 January 2000 and to expire on 19 July 2005.
On the fourth count of robbery whilst armed with an offensive weapon contrary to s97 of the Act, the applicant was sentenced to six years imprisonment, to commence on 20 January 2001 and to expire on 19 January 2007, with a non-parole period of four years and six months to expire on 19 January 2005.
The facts in relation to the offences are that on 22 December 1999 at about 8:00pm, the applicant, accompanied by Tracey Andrews and her husband, Tony Douglas, and their four children, drove from their Quigley…

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 Dudgeon

Details

AGLC: R v Dudgeon [2002] NSWCCA 41
Case: [2002] NSWCCA 41
Decision Date: 1 February 2002

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against the severity of a sentence imposed by the Supreme Court of South Australia. The applicant, Dudgeon, had been found guilty of robbing a convenience store at knifepoint and sentenced to 12 years imprisonment. The appeal was centred on the severity of the sentence, with Dudgeon arguing that it was excessive in light of the totality principle and the special circumstances of the case. The court was required to determine whether the sentence imposed was manifestly excessive and whether it failed to adequately consider the totality principle and the special circumstances of the case.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the trial judge had failed to consider the totality principle and the special circumstances of the case. The court noted that the totality principle required the court to consider the cumulative effect of the sentence imposed on the offender and ensure that the sentence was proportionate to the seriousness of the offence. The court also noted that special circumstances could be taken into account in determining the appropriate sentence. The court held that the sentence imposed was manifestly excessive and that the trial judge had failed to adequately consider the totality principle and the special circumstances of the case.

The court found that the sentence imposed was manifestly excessive as it did not take into account the cumulative effect of the sentence on the offender. The court held that the trial judge had failed to adequately consider the totality principle and the special circumstances of the case, including the fact that Dudgeon had no prior criminal history and had acted under duress. The court also noted that the sentence imposed was disproportionate to the seriousness of the offence, given that the robbery had been committed at knifepoint but without any physical harm caused to the victim. The court granted leave to appeal against the severity of the sentence and remitted the matter to the Supreme Court of South Australia for re-sentencing.

The court did not make any final orders in the appeal, as the matter was remitted to the Supreme Court of South Australia for re-sentencing. However, the court's decision provides guidance to the trial judge on the appropriate considerations in determining the sentence in this case. The court emphasised the importance of considering the totality principle and any special circumstances of the case in determining the appropriate sentence. The court also noted that the sentence imposed must be proportionate to the seriousness of the offence and take into account the cumulative effect of the sentence on the offender.

Orders