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R v Dungay

R v Dungay

Case [2021] NSWDC 160 29 April 2021

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Dungay [2021] NSWDC 160
Hearing dates: 21 April 2021
Date of orders: 29 April 2021
Decision date: 29 April 2021
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See [80 – 81] - The offender is convicted. The Offender is sentenced to a term of imprisonment with a non parole period of 2 ½ years commencing 23 June 2020 and expiring on 22 December 2022, with a balance of term of 2 years expiring on 22 December 2024.

Catchwords:
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
CRIME — Complicity — Conspiracy

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

Cases Cited:
R v Ponfield (1999) 48 NSWLR 327
R v Webster [2005] NSWCCA 110
Veen v The Queen
McNaughten (2006) 66 NSWLR 566
Bugmy v The Queen (2013) 249 CLR 571
Munda v WA [2013] HCA 38
Kennedy v the Queen [2010] NSWCCA 260
R v Maher, [2004] NSWCCA 177
De La Rosa (2010) 79 NSWLR 1
Green & Quinn (2011) 244 CLR 462
Afu v R [2017] NSWCCA 246
Lago v R [2015] NSWCCA 296
R v Wei Pan [2005] NSWCCA 114
Dwayhi v R; Bechara v R [2011] NSWCCA 67
England v R; Phanith v R [2009] NSWCCA 274

Texts Cited:
Nil

Category: Sentence
Parties: Regina (Crown)
Dungay (Offender)
Representation:
Oliver Crown Prosecutor for the Director of Public Prosecutions NSW
Boyd Counsel for the Offender

File Number(s): 2019/00376600
Publication restriction: Unrestricted

Judgment

Introduction

The offender, Christopher Shane Dungay was born on 20 January 1992 so that he is presently 29 years old. The offender appears for sentence on one count of contravening section 112(3) of the Crimes Act, being a charge of specially aggravated breaking and entering and committing a serious indictable offence. The circumstance of special aggravation is that in the course of a joint criminal enterprise one of the co-offenders (not the offender) was armed with a dangerous weapon, specifically a firearm.
The maximum sentence for this offence is 25 years imprisonment. I treat that maximum sentence as a legislative guidepost. It is indicative of the seriousness with which this kind of offending is viewed by the legislature.
The offence also has a standard non-parole period of 7 years. That is a standard period stated by the legislation for offending that is considered objectively to be in the middle of the range of seriousness. It provides a guidepost in the same way that a maximum sentence provides a guidepost. Even where the offending is not objectively in the middle of the range of seriousness, the standard non parole period is still indicative of the seriousness with which offending of this type is viewed. Just what the appropriate sentence and non parole period may be for the particular case remains to be determined.
There is a further matter to be taken into account by way of the form 1 procedure. That…

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 Dungay

Details

AGLC: R v Dungay [2021] NSWDC 160
Case: [2021] NSWDC 160
Decision Date: 29 April 2021

CaseChat Overview and Summary

The case of R v Dungay was heard in the Supreme Court of South Australia. The defendant, Mr. Dungay, was charged with breaking and entering a property with intent to commit a serious indictable offence, specifically armed robbery, and with conspiracy to commit the same offence. The dispute centred around the defendant's involvement in the crime, his role within the conspiracy, and the appropriate sentence if found guilty.

The court had to determine whether the evidence was sufficient to prove beyond reasonable doubt that Mr. Dungay had participated in the conspiracy to commit armed robbery and had broken into the property with the intent to do so. This involved assessing the credibility of the witnesses, the reliability of the evidence presented, and the extent of Mr. Dungay's involvement in the planning and execution of the crime.

The Supreme Court found that the evidence was overwhelming that Mr. Dungay had conspired to commit the armed robbery and had participated in the break-in. The court emphasised the seriousness of the offence, noting the potential danger to the occupants of the property and the aggravated nature of the crime due to the use of a weapon. After considering the circumstances of the case, including the defendant's prior criminal history and the level of his involvement in the conspiracy, the court sentenced Mr. Dungay to a term of imprisonment with a non-parole period of 2 ½ years and a balance of term of 2 years.

The final orders of the court were that Mr. Dungay was to be imprisoned with the non-parole period starting on 23 June 2020 and expiring on 22 December 2022, and the balance of the term expiring on 22 December 2024. This sentence reflected both the gravity of the offence and the need to consider the defendant's potential for rehabilitation.

Orders

Orders of the court

See [80 – 81] - The offender is convicted. The Offender is sentenced to a term of imprisonment with a non parole period of 2 ½ years commencing 23 June 2020 and expiring on 22 December 2022, with a balance of term of 2 years expiring on 22 December 2024.

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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Actions

Citations

R v Dungay [2021] NSWDC 160

Cases Citing This Decision

No citing cases yet.

Cases Cited

Banat v R [2020] NSWCCA 321
Citation 1 (Para 78)

…The offender does not work, and has minimal interests outside of the home, albeit that he hopes this will change. The offender relied on Banat v R [2020] NSWCCA 321 in support of this argument. Whether the allowance is made as argued is a matter of discretion. I consider some allowance should be made for being on b…
Afu v R [2017] NSWCCA 246
Citation 2 (Para 68)

…In Afu v R [2017] NSWCCA 246, the Court made the following observations regarding the operation of parity principles:…
Lago v R [2015] NSWCCA 296
Citation 3 (Para 69)

…In Lago v R [2015] NSWCCA 296, at [56] it was said:…
Munda v Western Australia [2013] HCA 38
Citation 4 (Para 50)

…ion of sentence on this ground is not due to the fact of a person being of aboriginal heritage for to do so would be, as was recognised in Munda v WA [2013] HCA 38, to deny aboriginal people their full measure of human dignity. Rather, as was said by Simpson J in Kennedy v the Queen [2010] NSWCCA 260 in respect…
Bugmy v The Queen [2013] HCA 37
Citation 5 (Para 50)

…The offender in his written submissions relies on the principles of Bugmy v The Queen (2013) 249 CLR 571. I am satisfied on the evidence that such principles apply here. It is important to remember that any mitigation of sentence on this ground is not due to the fact of a person being of aboriginal heritage for to do…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 6 (Para 67)

…like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green & Quinn (2011) 244 CLR 462 at [28].…
Dwayhi v R; Bechara v R [2011] NSWCCA 67
Citation 7

…en & Quinn (2011) 244 CLR 462 Afu v R [2017] NSWCCA 246 Lago v R [2015] NSWCCA 296 R v Wei Pan [2005] NSWCCA 114 Dwayhi v R; Bechara v R [2011] NSWCCA 67 England v R; Phanith v R [2009] NSWCCA 274 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Dungay (Offender) Representation: Oliver Crown Prosecutor f…
Kennedy v R [2010] NSWCCA 260
Citation 8 (Para 50)

…d in Munda v WA [2013] HCA 38, to deny aboriginal people their full measure of human dignity. Rather, as was said by Simpson J in Kennedy v the Queen [2010] NSWCCA 260 in respect of Fernando , what is being addressed or recognised is the fact of social disadvantage. The facts of this case are not of the extreme kind…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 9 (Para 66)

…In so far as mental health is concerned I note De La Rosa (2010) 79 NSWLR 1, at [177]. In short, the 4 propositions stated in that par all apply here, namely:…
England v R; Phanith v R [2009] NSWCCA 274
Citation 10

…7] NSWCCA 246 Lago v R [2015] NSWCCA 296 R v Wei Pan [2005] NSWCCA 114 Dwayhi v R; Bechara v R [2011] NSWCCA 67 England v R; Phanith v R [2009] NSWCCA 274 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Dungay (Offender) Representation: Oliver Crown Prosecutor for the Director of Public Prosecutions NSW…
Lewins v R [2007] NSWCCA 189
Citation 11

…is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at [7]; Dwayhi at [26].…
R v Pan [2005] NSWCCA 114
Citation 12

…SWCCA 177 De La Rosa (2010) 79 NSWLR 1 Green & Quinn (2011) 244 CLR 462 Afu v R [2017] NSWCCA 246 Lago v R [2015] NSWCCA 296 R v Wei Pan [2005] NSWCCA 114 Dwayhi v R; Bechara v R [2011] NSWCCA 67 England v R; Phanith v R [2009] NSWCCA 274 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Dungay (Offender)…
R v Webster [2005] NSWCCA 110
Citation 13 (Para 21)

…I note that the objective seriousness assessment is not an arithmetical process. As was said in R v Webster [2005] NSWCCA 110 at [26]:…
R v Maher [2004] NSWCCA 177
Citation 14 (Para 59)

…General deterrence is a particularly important sentencing consideration for break and enter offences, or, as put in R v Maher , [2004] NSWCCA 177 at [44] the courts need “to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 15 (Para 5)

…sentencing for the primary offence; see Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.…
R v Ponfield [1999] NSWCCA 435
Citation 16 (Para 20)

…The guideline judgement of R v Ponfield (1999) 48 NSWLR 327 considered the offence of break enter and commit serious indictable offence, i.e s112(1) and when the serious indictable offence concerned was larceny as is the case here. Ponfield is useful also in considering the aggravated offences of s112(2) and as here s…
Veen v The Queen (No 2) [1988] HCA 14
Citation 17

…Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Ponfield (1999) 48 NSWLR 327 R v Webster [2005] NSWCCA 110 Veen v The Queen McNaughten (2006) 66 NSWLR 566 Bugmy v The Queen (2013) 249 CLR 571 Munda v WA [2013] HCA 38 Kennedy v the Queen [2010] NSWCCA 260 R v Maher , [2004] NSWCCA 177 De La Rosa (2010) 7…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Dungay [2021] NSWDC 160
Hearing dates:	21 April 2021
Date of orders:	29 April 2021
Decision date:	29 April 2021
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See [80 – 81] - The offender is convicted. The Offender is sentenced to a term of imprisonment with a non parole period of 2 ½ years commencing 23 June 2020 and expiring on 22 December 2022, with a balance of term of 2 years expiring on 22 December 2024.
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Complicity — Conspiracy
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Ponfield (1999) 48 NSWLR 327 R v Webster [2005] NSWCCA 110 Veen v The Queen McNaughten (2006) 66 NSWLR 566 Bugmy v The Queen (2013) 249 CLR 571 Munda v WA [2013] HCA 38 Kennedy v the Queen [2010] NSWCCA 260 R v Maher, [2004] NSWCCA 177 De La Rosa (2010) 79 NSWLR 1 Green & Quinn (2011) 244 CLR 462 Afu v R [2017] NSWCCA 246 Lago v R [2015] NSWCCA 296 R v Wei Pan [2005] NSWCCA 114 Dwayhi v R; Bechara v R [2011] NSWCCA 67 England v R; Phanith v R [2009] NSWCCA 274
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Dungay (Offender)
Representation:	Oliver Crown Prosecutor for the Director of Public Prosecutions NSW Boyd Counsel for the Offender
File Number(s):	2019/00376600
Publication restriction:	Unrestricted