R v Dunn

Case [2004] NSWCCA 41 5 March 2004

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Reported Decision:
144 A Crim R 180

New South Wales

Court of Criminal Appeal

CITATION: REGINA v DUNN [2004] NSWCCA 41

HEARING DATE(S): 23 February 2004

JUDGMENT DATE:
5 March 2004

JUDGMENT OF: Ipp JA at 1; Sully J at 2; Adams J at 3

DECISION: (1) Appeal allowed (2) The sentences imposed below quashed and new sentences substituted (3) On the charge of assault occasioning actual bodily harm a sentence of one year and nine months to commence on 11 July 2002 and end on 10 April 2004 (4) On the charge of breaking and entering a dwelling house a sentence of four years and six months commencing 10 December 2002 and ending 10 June 2007 (5) The earliest date on which he will be eligible to be released on parole is 10 July 2005

CATCHWORDS: Crown appeal against leniency - sentence - specially aggravated breaking and entering - domestic violence - seriousness - breach of apprehended violence order - seriousness of offence - nature of offence - sentence increased

LEGISLATION CITED: Crimes Act 1900 s51A
Crimes (Sentencing Procedure) Act 1999 s44(2)

CASES CITED: Olbrich (1999) 108 A Crim R 464
R v Davis [2003] NSWCCA 79
R v Deluca [2002] NSWCCA 446.
R v Flavell [2002] NSWCCA 220
R v Hellyer [2001] NSWCCA 384.
R v Irving [2003] NSWCCA 127
R v LBK [2001] NSWCCA 248
R v Morrison (unreported NSWCCA 5 September 1997)
R v Letteri (unreported, NSWCCA 18 March 1993
R v Prestwidge [2002] NSWCCA 439
R v Sassin [2002] NSWCCA 47
R v Talbot (unreported NSWCCA 19 December 1997)
R v Thomson & Houlton (2000) 49 NSWLR 383
Scognamiglio (1991) 56 A Crim R 81
Veen v The Queen (No 2) (1998) 164 CLR 465
R v Zibelnik [2002] NSWCCA 317

PARTIES :
Regina v Peter Allan DUNN

FILE NUMBER(S): CCA 60354/03

COUNSEL: P Ingram (Crown)
R Hulme SC (Respondent)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3468

LOWER COURT
JUDICIAL OFFICER : Moore DCJ

60354/03

IPP JA
SULLY J
ADAMS J
FRIDAY 5 MARCH 2004

REGINA v DUNN

Judgment

1 IPP JA: I agree with Adams J.

2 SULLY J: I agree with Adams J.

3 ADAMS J: The respondent pleaded guilty on 5 June 2003 to an offence under s51A of the Crimes Act 1900 of breaking and entering the dwelling of one Christine Power, being armed with an offensive weapon, namely a Stanley knife, with which he wounded Ms Power by inflicting three shallow lacerations to her neck. On the same day he also pleaded guilty to the offence of assaulting one Patrick Pitt, thereby occasioning actual bodily harm, this crime occurring in Ms Power’s home when Mr Pitt attempted to protect her from the respondent.

4 The first offence was also a breach of an apprehended violence order that had been made on 23 December 2000 by the Local Court for the very purpose of protecting Ms Power…

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 Dunn

Details

AGLC: R v Dunn [2004] NSWCCA 41
Case: [2004] NSWCCA 41
Decision Date: 5 March 2004

CaseChat Overview and Summary

In the case of R v Dunn, the Crown appealed against the sentence imposed on the respondent, who was convicted of specially aggravated breaking and entering into a dwelling, involving a breach of an apprehended violence order and constituting a domestic violence offence. The matter was heard in the High Court of Australia. The Crown contended that the sentence of imprisonment imposed on the respondent was manifestly inadequate given the gravity of the offence and the circumstances in which it was committed.

The primary legal issue before the Court was whether the sentence imposed was manifestly inadequate in light of the seriousness of the offence. The Court needed to consider the gravity of the offence, including the breach of an apprehended violence order, the nature of the offence as a specially aggravated breaking and entering into a dwelling, and the context of domestic violence. The Court also needed to assess whether the sentencing judge had given sufficient weight to the aggravating factors and whether the sentence was proportionate to the seriousness of the offence.

The High Court, in affirming the Crown's appeal, held that the sentence imposed on the respondent was manifestly inadequate. The Court found that the sentencing judge had not adequately addressed the seriousness of the offence, particularly in relation to the breach of the apprehended violence order and the domestic violence context. The Court emphasised that the sentencing judge should have imposed a sentence that reflected the gravity of the offence, including the aggravating factors of the breach of an apprehended violence order and the domestic violence context. As a result, the Court increased the sentence of imprisonment imposed on the respondent.

Orders