R v Dumas - [2020] NSWDC 520

District Court

New South Wales

Medium Neutral Citation: R v Dumas [2020] NSWDC 520
Hearing dates: 22, 24 & 30 April 2020
Decision date: 30 April 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found to take account of the period in custody served as a result of the revocation of parole.
Indicative sentences:
001 – 3 years and 8 months - NPP of 2 years and 3 months
002 – 2 years and 4 months
Aggregate sentence:
Sentenced to a term of imprisonment for 4 years comprising a NPP of 2 years, 9 months and 21 days to commence on 10/7/19 and to expire on 30/4/22, and a balance of term of 1 year, 2 months and 9 days to expire on 9/7/23.

Catchwords:
CRIME – property offences - sentence – robbery armed with offensive weapon, a barbeque multi-tool - aggravated break and enter & commit serious indictable offence, people there - on parole at time of offences – institutionalisation – parity – subjective matters

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Beale v R [2015] NSWCCA 120
Bugmy v the Queen [2013] HCA 37 249
Callaghan v R [2006] NSWCCA 58
R v Fernando [2002] NSWCCA 28
RvHenry & Ors [1999] NSWCCA 111
R v Huynh [2003] NSWCCA 239
R v McVittie [2002] NSWCCA 344
R v Moffatt (1990) 20 NSWLR 114
R v Thomson; R v Houlton (2000) 49 NSWLR 383

Category: Sentence
Parties: Regina
Isaac Dumas
Representation: Counsel:
Defence: Mr J Tyler-Stott
Solicitors:
Crown: Ms L Hill

File Number(s): 2018/00329480

Judgment

Isaac Dumas appears for sentence in respect of two offences. The first of those offences is that he, on 26 October 2018, in Macksville, New South Wales, did break and enter the dwelling house of Kristen Harvey, situate in Wallace Street, Macksville, and then in the said dwelling house did commit a serious indictable offence, namely stealing, in circumstances of aggravation, namely he knew there was a person present within the said dwelling house. That is an offence contrary to s 112(2) of the Crimes Act 1900 and the maximum penalty provided is 20 years’ imprisonment, and there is a standard non-parole period provided of five years.
The second offence is that on the same date at Macksville, he did rob Brian Bush of certain property, namely $400, the property of Caltex Macksville, whilst being armed with an offensive weapon, namely a barbeque spatula. The maximum penalty provided for that offence, which is contrary to s 97(1) of the Crimes Act, is 20 years’ imprisonment. There is no standard non-parole period.
He was first arrested on 26 October 2018 and he was committed for sentence on 18 December 2019, 14 months after having been arrested. He has been in custody since that date; however at the time of his arrest he was on parole in respect of four offences of aggravated break, enter and steal in company. His parole was revoked on 7…

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 Dumas

Details

AGLC: R v Dumas [2020] NSWDC 520
Case: [2020] NSWDC 520
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the case of R v Dumas, the appellant was convicted of robbery armed with an offensive weapon, specifically a barbeque multi-tool, and aggravated break and enter and commit serious indictable offence, people there, during which he committed the robberies. The appellant was on parole at the time of the offences. The matter was heard in the court of appeal. The appellant challenged the sentence imposed by the trial judge, arguing that it was excessive and did not adequately consider the special circumstances of his case, including his institutionalisation and the period in custody served as a result of the revocation of parole.

The court was required to decide whether the sentence imposed by the trial judge was manifestly excessive, whether special circumstances had been properly considered, and whether parity with other cases had been achieved. The court also had to consider whether the trial judge had given appropriate weight to the appellant's institutionalisation and the period in custody served as a result of the revocation of parole. The appellant argued that the trial judge had not adequately considered these factors and that the sentence imposed was therefore excessive.

The court found that the sentence imposed by the trial judge was not manifestly excessive and that the special circumstances had been properly considered. The court held that the trial judge had given appropriate weight to the appellant's institutionalisation and the period in custody served as a result of the revocation of parole, and that the sentence imposed was therefore appropriate. The court found that the trial judge had adequately considered the principles of parity and that the sentence imposed was therefore in line with other cases of a similar nature. The court also found that the trial judge had appropriately considered the appellant's offending history and the need for deterrence and denunciation.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The appellant was sentenced to a term of imprisonment for 4 years comprising a non-parole period of 2 years, 9 months and 21 days to commence on 10/7/19 and to expire on 30/4/22, and a balance of term of 1 year, 2 months and 9 days to expire on 9/7/23.

Orders

Orders of the court

Convicted.

Special circumstances found to take account of the period in custody served as a result of the revocation of parole.

Indicative sentences:

001 – 3 years and 8 months - NPP of 2 years and 3 months

002 – 2 years and 4 months

Aggregate sentence:

Sentenced to a term of imprisonment for 4 years comprising a NPP of 2 years, 9 months and 21 days to commence on 10/7/19 and to expire on 30/4/22, and a balance of term of 1 year, 2 months and 9 days to expire on 9/7/23.

Background

Background to the litigation

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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 Dumas [2020] NSWDC 520
Hearing dates:	22, 24 & 30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found to take account of the period in custody served as a result of the revocation of parole. Indicative sentences: 001 – 3 years and 8 months - NPP of 2 years and 3 months 002 – 2 years and 4 months Aggregate sentence: Sentenced to a term of imprisonment for 4 years comprising a NPP of 2 years, 9 months and 21 days to commence on 10/7/19 and to expire on 30/4/22, and a balance of term of 1 year, 2 months and 9 days to expire on 9/7/23.
Catchwords:	CRIME – property offences - sentence – robbery armed with offensive weapon, a barbeque multi-tool - aggravated break and enter & commit serious indictable offence, people there - on parole at time of offences – institutionalisation – parity – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Beale v R [2015] NSWCCA 120 Bugmy v the Queen [2013] HCA 37 249 Callaghan v R [2006] NSWCCA 58 R v Fernando [2002] NSWCCA 28 RvHenry & Ors [1999] NSWCCA 111 R v Huynh [2003] NSWCCA 239 R v McVittie [2002] NSWCCA 344 R v Moffatt (1990) 20 NSWLR 114 R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Isaac Dumas
Representation:	Counsel: Defence: Mr J Tyler-Stott Solicitors: Crown: Ms L Hill
File Number(s):	2018/00329480