R v Dunn

Case [2007] NSWCCA 312

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Dunn v Regina [2007]  NSWCCA 312
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/00003326001

HEARING DATE(S):               01/11/2007

JUDGMENT DATE: 13 November 2007

PARTIES:
Darren Brian Dunn - Applicant
Regina - Respondent Crown

JUDGMENT OF:       Handley AJA Hoeben J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          06/11/0039

LOWER COURT JUDICIAL OFFICER:     Marien DCJ

LOWER COURT DATE OF DECISION:    13/12/2006

COUNSEL:
Mr P Byrne SC - Applicant
Mr G Rowling - Respondent Crown

SOLICITORS:
SE O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Sentence - application of s21A(2)(h) of Crimes (Sentencing Procedure) Act 1999 - did it apply to false belief that victim was a paedophile - effect of accumulation of sentences to provide a non-parole period greater than 75% of the total sentence - whether Court should intervene.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:

DECISION:
Leave to appeal against sentence granted
Dismiss the appeal against sentence on Count 2 (malicious damage by fire on 29 August 2005)
Allow the appeal against sentence on Count 3 (maliciously destroy by fire on 3 October 2005)
Sentence passed in respect of Count 3 quashed
In lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 4 years and 2  months commencing on 14 April 2007 and expiring on 13 June 2011 with a balance of term of 1 year and 10 months expiring on 13 April 2013

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003326001

HANDLEY AJA
HOEBEN J
SMART AJ

Thursday 13 November 2007

Darren Brian DUNN v REGINA

Judgment

  1. HANDLEY AJA:  I agree with Hoeben J.

  2. HOEBEN J: 

    Offences and sentence

    On 9 May 2006 the applicant was arraigned on charges that:

    Count 1 – On 29 August 2005 at Riverwood did maliciously destroy by fire a garage at 32 Keats Avenue which contained certain motor vehicles.

    Count 2 – On 29 August 2005 at Riverwood did maliciously damage, by means of fire, certain property namely a residential flat at 2/24 Coorabin Place, the property of the New South Wales Department of Housing.

    Count 3 – On 3 October 2005 at Riverwood did maliciously destroy, by means of fire, certain property, namely a residential flat at 2/24 Coorabin Place, the property of the New South Wales Department of Housing.

  3. The applicant pleaded not guilty and the trial proceeded before Marien DCJ and a jury.  On 23 May 2006 the applicant was found guilty of counts 2 and 3.

  4. The counts in relation to which guilty verdicts were returned were offences contrary to s 195(b) of the Crimes Act 1900. These offences carried a maximum penalty of 10 years imprisonment. His Honour was asked to take into account on a Form 1 in respect of the sentence for count 2 a charge that the applicant on 14 October…

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Details
AGLC
R v Dunn [2007] NSWCCA 312
Case
[2007] NSWCCA 312
Decision Date

CaseChat Overview and Summary

In the matter of R v Dunn, the applicant appealed against his sentence, which was imposed following his conviction for two counts of malicious damage by fire. The applicant had set fire to the porch and front window of his neighbour's unit, causing extensive damage. The applicant claimed he believed his neighbour to be a paedophile, a belief which was unfounded. The sentences imposed resulted in a non-parole period that exceeded the statutory ratio, prompting the appeal. The primary legal issue before the court was whether the non-parole period of the sentence should be reduced to align with the statutory ratio, given the absence of any explanation for the increased non-parole period. The court found that the accumulation of sentences leading to a non-parole period exceeding the statutory ratio constituted special circumstances warranting intervention. The court concluded that a reduction of four months in the non-parole period for the second count would achieve the necessary alignment. Consequently, the appeal against the sentence for the second count was dismissed, but the appeal against the sentence for the first count was allowed. The sentence for the first count was quashed and replaced with a term of imprisonment with a non-parole period of 4 years and 2 months, with the balance of the term set to expire on a later date. The appeal was allowed in part, with the sentence modified as specified.

Orders

Orders of the court

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Background

Background to the litigation

The combined effect of those sentences was a term of imprisonment of 6 years with a balance of term of 18 months. The applicant has appealed against those sentences.Factual background In August – October 2005 the applicant was living in a rented unit at 3/24 Coorabin Place, Riverwood. At that time a Mr Ibrahim Arja lived in the adjoining unit at 2/24 Coorabin Place. The block of units comprised five units, all of which were owned by the NSW Department of Housing. In the early hours of Monday 29 August 2005 the applicant lit a fire on the front porch of Mr Arja’s unit using some chairs which were on the porch. At the time Mr Arja was overseas and that was known to the applicant. As a result of the fire the chairs were destroyed, the lounge-room window which looked out onto the porch was fire damaged and there was smoke damage to the porch and lounge-room. When the fire brigade arrived the applicant was observed to be attempting to extinguish the fire with a garden hose. On 30 October 2005 shortly after 11pm the applicant lit another fire at Mr Arja’s unit. Although Mr Arja had returned from overseas he was not in the unit at the time. The applicant lit the second fire in the area of the front window. The fire completely burnt out Mr Arja’s unit and also caused damage to the applicant’s unit and to the entire building. As a result of the fire the Department of Housing deemed the building to be uninhabitable.Remarks on sentence Having set out the basic facts, his Honour sought to determine the applicant’s motivation in lighting the fires. His Honour confronted some difficulties in that regard in that the applicant did not give evidence at trial. The evidence which his Honour relied upon was that of a police informer, Smith, concerning a conversation which he had had with the applicant. His Honour also relied upon the contents of a report of Dr Richard Furst, dated 5 October 2006. Dr Furst was a psychiatrist whose report was tendered on behalf of the applicant in the sentence proceedings. His Honour found that the conversations between the applicant and Smith produced two possible motives for lighting the fires. In a conversation on 6 October 2005, three days after the second fire, the offender told Smith that as a result of the fires the Department of Housing would have to relocate him. He particularly wanted to move to the Sutherland Shire where he believed he would be more successful with women. Later in that conversation the applicant said, “You know I’ve burnt that joint twice next door mate. Twice since it’s been burnt out. The first time was all right, it was good because he’s a rock spider used to live in there. So as soon as I did that …I just lit his place up.” It was common ground that the allegation that Mr Arja was a “rock spider” was completely false. At the trial Mr Arja gave evidence he had always got along well with the applicant and that they had never had a disagreement or argument. The following was recorded as part of the history taken by Dr Furst from the applicant:“He told me that both fires were meant to be a “scare tactic” as he was convinced the person living at 2/24 Coorabin Place Riverwood was a “rock spider” … a child molester. He explained that he had been at the local shops when someone pointed his neighbour out to him and said “See that man, he’s a rock spider”. He stated that this is not the sort of thing which is said lightly and he believed this man. He further explained that the intention of the fires was to get either himself or his neighbour moved by the Department of Housing because he could not bear to live next to a child molester.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It has been held by this Court that where one or more sentences are made cumulative upon another sentence so as to produce a non-parole period which is in excess of the statutory ratio that of itself may amount to special circumstances. On the facts of this case that consideration and the absence of an explanation as to why the non-parole period has been increased beyond the statutory ratio, lead me to conclude that this Court ought intervene so that the combined effect of the sentences conforms with the statutory ratio. A reduction of 4 months in the non-parole period in respect of count 3 would substantially achieve that result.Conclusion The orders which I propose are as follows: Leave to appeal against sentence granted. Dismiss the appeal against sentence on Count 2 (malicious damage by fire on 29 August 2005). Allow the appeal against sentence on Count 3 (maliciously destroy by fire on 3 October 2005). Sentence passed in respect of Count 3 quashed. In lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 4 years and 2 months commencing on 14 April 2007 and expiring on 13 June 2011 with a balance of term of 1 year and 10 months expiring on 13 April 2013. SMART AJ: I agree with Hoeben J.

Ratio Decidendi

Legal Principle Established

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