R v Dunn - [2020] NSWDC 877

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dunn [2020] NSWDC 877
Hearing dates: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years with a non-parole period of 2 years.

Catchwords:
CRIME – Supply prohibited drug – Affray
SENTENCING — Relevant factors on sentence - long custodial history - deprived background - institutionalised – inability to engage with rehabilitation - supply of drugs to maintain addiction - affray –involved the use of weapons - offender suffered serious injury- extra-curial punishment – offending while on parole - offending in breach of bond - accumulation of sentences – totality - impact of plea negotiations on discount for its utilitarian benefit
CRIMINAL PROCEDURE – Error in commencement date – s43 Crimes (Sentencing Procedure) Act 1999 not applicable - slip rule applied - commencement date of orders varied.

Legislation Cited:
CrimesAct 1900
Crimes (Sentencing Procedure) Act 1999
Drug (Misuse and Trafficking) Act 1985

Cases Cited:
Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Dean v R [2020] NSWCCA 317
Gould v Vaggelas (1985) 157 CLR 215 at 275; [1985] HCA 75
R v Achurch(No 2) [2013] NSWCCA 117; 84 NSWLR 328
Thompson-Davis v R [2013] NSWCCA 75

Category: Sentence
Parties: Garrett Dunn (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr M Powell
Solicitors:
G Morrison, Morrison Law (for the offender)
Mr M Rollestone (for the Director of Public Prosecutions)

File Number(s): 2018/00281535; 2019/00131680

SENTENCE EX TEMPORE REVISED

Garrett Dunn is for sentence today for three serious offences. There are two counts of supplying a prohibited drug, s 25(1) Drug (Misuse and Trafficking) Act 1985. The first involved 6.5 grams of methylamphetamine, the second 56 grams of methylamphetamine. Those offences carry a maximum penalty of 15 years' imprisonment and/or a substantial fine. They occurred in April of 2019, while the offender was serving balance of parole of a sentence for a similar offence. At about the same time he committed an offence of affray: s 93C(1) Crimes Act 1900, maximum penalty ten years.
Sadly and tragically, Dunn is no stranger to the courts. When he was young, he was subject of control orders imposed by the Children's Court. He was born in 1989 and first received a conviction and sentence in an adult court in February 2008. He has spent eight of the last 12 years in custody serving sentences and he will have to serve more time in custody as a consequence of these crimes.
That stark history is in part explained by his background, which is set out in the report of Ms Taylor dated 19 April 2019, that was before the District Court when he was last sentenced. Dunn never knew his father. His mother's life was blighted by drug and alcohol abuse. He has a history, as a child, of emotional neglect, abandonment, rejection and being bullied.…

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 [2020] NSWDC 877
Case: [2020] NSWDC 877
Decision Date: 11 December 2020

CaseChat Overview and Summary

The case of R v Dunn involved the appellant, who was convicted for supplying a prohibited drug and engaging in an affray involving the use of weapons. The matter was heard in the NSW Court of Criminal Appeal. The appellant's case involved a range of complex legal issues, including the consideration of relevant factors for sentencing, such as his long history of incarceration, deprived background, and inability to engage with rehabilitation programs. Additionally, the court had to consider the nature of the offences, the use of weapons in the affray, and the fact that the appellant suffered serious injury during the incident. The court also had to consider the impact of the appellant's extra-curial punishment, his offending while on parole, and the breach of his bond on the appropriate sentence.

The court began by noting that the appellant's long history of incarceration and deprived background were relevant factors that needed to be taken into account when determining the appropriate sentence. However, the court also noted that the appellant's inability to engage with rehabilitation programs was a significant factor that weighed against him. The court further noted that the supply of drugs to maintain the appellant's addiction was a serious offence that needed to be punished. The court also considered the nature of the affray, which involved the use of weapons and resulted in the appellant suffering serious injury. The court found that the appellant's involvement in the affray was a significant aggravating factor that needed to be taken into account when determining the appropriate sentence.

After considering all of the relevant factors, the court determined that an aggregate sentence of 3 years with a non-parole period of 2 years was appropriate. The court also considered the impact of the appellant's extra-curial punishment, his offending while on parole, and the breach of his bond on the appropriate sentence. The court found that these factors warranted a higher sentence than would otherwise have been appropriate. However, the court also noted that the appellant's plea negotiations had resulted in a discount for its utilitarian benefit, which needed to be taken into account when determining the appropriate sentence.

The court also considered an error in the commencement date of the orders made by the trial judge. The appellant submitted that the error was not insignificant and that it should be varied. The prosecution submitted that s43 of the Crimes (Sentencing Procedure) Act 1999 prevented the court from varying the commencement date. The court found that s43 did not apply in this case and that the slip rule should be applied. The court varied the commencement date of the orders to reflect the correct date.

Orders

Orders of the court

Aggregate sentence of 3 years with a non-parole period of 2 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Dunn [2020] NSWDC 877
Hearing dates:	11 December 2020
Decision date:	11 December 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years with a non-parole period of 2 years.
Catchwords:	CRIME – Supply prohibited drug – Affray SENTENCING — Relevant factors on sentence - long custodial history - deprived background - institutionalised – inability to engage with rehabilitation - supply of drugs to maintain addiction - affray –involved the use of weapons - offender suffered serious injury- extra-curial punishment – offending while on parole - offending in breach of bond - accumulation of sentences – totality - impact of plea negotiations on discount for its utilitarian benefit CRIMINAL PROCEDURE – Error in commencement date – s43 Crimes (Sentencing Procedure) Act 1999 not applicable - slip rule applied - commencement date of orders varied.
Legislation Cited:	CrimesAct 1900 Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Dean v R [2020] NSWCCA 317 Gould v Vaggelas (1985) 157 CLR 215 at 275; [1985] HCA 75 R v Achurch(No 2) [2013] NSWCCA 117; 84 NSWLR 328 Thompson-Davis v R [2013] NSWCCA 75
Category:	Sentence
Parties:	Garrett Dunn (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr M Powell Solicitors: G Morrison, Morrison Law (for the offender) Mr M Rollestone (for the Director of Public Prosecutions)
File Number(s):	2018/00281535; 2019/00131680