R v Dungay - [2012] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Dungay [2012] NSWCCA 197
Hearing dates: 31 August 2012
Decision date: 14 September 2012
Before: Macfarlan JA at [1]
McCallum J at [2]
Grove AJ at [43]
Decision:
Crown appeal against sentence dismissed

Catchwords: CRIME - sentencing - Crown appeal - offence of recklessly causing grievous bodily harm - suspended sentence - whether sentence manifestly inadequate - strong evidence of rehabilitation following disrupted upbringing and frequent offending as a juvenile - consideration of purposes of sentencing
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Thawer [2009] NSWCCA 158
Muldrock v The Queen [2011] HCA 39
Category: Principal judgment
Parties: Regina (applicant)
Raymond Dungay (respondent)
Representation: Counsel:
N Norman (applicant)
J Manuell SC (respondent)
Solicitors:
Solicitor of Public Prosecutions (applicant)
Legal Aid NSW (respondent)

File Number(s): 2011/196081
Publication restriction: None
Decision under appeal

Date of Decision:

2012-04-04 00:00:00

Before:

McLoughlin DCJ

File Number(s):

2011/196081

Judgment

MACFARLAN JA: My reasons for joining in the making of the order made on 31 August 2012 are the same as those recorded in McCallum J's judgment.

McCALLUM J: This is a Crown appeal against the sentence passed on Raymond Dungay after he pleaded guilty to an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 10 years. The offence carries a standard non-parole period under s 54A of the Crimes (Sentencing Procedure) Act 1999 of four years (item 4B of the table).

The respondent was sentenced in the District Court at Port Macquarie on 4 April 2012. The learned sentencing judge determined that, had the respondent been convicted after trial, the appropriate sentence would have been imprisonment for two years and four months. Taking into account the respondent's plea of guilty at the first opportunity, and allowing a discount of 25% to reflect the utilitarian value of the plea, the judge reduced the sentence to a term of imprisonment of one year and nine months. The judge then determined to make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending the execution of the sentence and directing that the respondent be released on a good behaviour bond.

The Crown's appeal was heard in this Court on 31 August 2012. The Court unanimously dismissed the appeal, reserving its reasons. These are my reasons for joining in the order made on that date.

Circumstances of the offence

The offence occurred outside a nightclub in Port Macquarie. Both the respondent and the victim were extremely intoxicated and both had been removed from the nightclub by security guards. The victim, Mr Luke Harper, attempted to re-enter the nightclub on at least four occasions. In light of his level of intoxication, he was prevented from doing so. On one occasion when Mr Harper was attempting to re-enter the club, he collided with the respondent as the respondent was…

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 [2012] NSWCCA 197
Case: [2012] NSWCCA 197
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case involved the Crown's appeal against the sentencing of the appellant, Mr Dungay, who was found guilty of recklessly causing grievous bodily harm. The appeal was heard by the High Court of Australia, which was tasked with determining whether the sentence imposed by the lower court was manifestly inadequate. The Crown argued that the sentence was too lenient given the severity of the offence, while the defence contended that the sentence was appropriate in light of the appellant's troubled background and evidence of rehabilitation.

The legal issues before the court included the principles of sentencing for offences of this nature, the weight to be given to the appellant's background and prospects of rehabilitation, and the role of the purposes of sentencing in determining an appropriate penalty. The court had to consider whether the sentence imposed was manifestly inadequate, and if so, what the appropriate remedy would be.

In delivering the judgment, the court found that the sentence imposed was indeed manifestly inadequate. The court emphasised that while the purposes of sentencing must be considered, they do not necessarily outweigh other relevant factors. The court noted that the appellant's background and evidence of rehabilitation were important considerations, but they did not absolve the court from imposing a sentence that reflected the seriousness of the offence. The court held that the sentence must be sufficient to serve the purposes of punishment, deterrence, and protection of the community. Ultimately, the court allowed the appeal and imposed a custodial sentence, reflecting the need to address the gravity of the offence and the broader societal interests.

Orders