R v Dunstall (No 4) - [2018] NSWSC 1923

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Dunstall (No 4) [2018] NSWSC 1923
Hearing dates: 1 November 2018 & 6 December 2018
Decision date: 13 December 2018
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) Convicted of murder.
(2) Head sentence of 32 years with non-parole period of 24 years, each to date from 12 May 2015.

Catchwords: SENTENCE – offender found guilty of murder after trial by jury – two offences of dishonesty on Form 1– discussion of objective features and subjective features – criminal record for deception and solicit to murder – no remorse as offender maintains innocence – consideration of life sentence – determinate sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Category: Sentence
Parties: Regina
Glen Roland Dunstall
Representation:
Counsel:
D Scully (Crown)
J Stratton SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Voros Lawyers (Accused)

File Number(s): 2015/141328
Publication restriction: Nil

REMARKS ON SENTENCE

Introduction

On 10 September 2018, Glen Roland Dunstall (the offender) was arraigned before a jury panel and me in the Supreme Court sitting at Wollongong. The indictment contained a single count, averring that, on 9 June 2014 at Budderoo, the offender murdered John Gasovski (to whom I shall usually refer in these remarks as “the deceased”). A jury of 12 was empanelled, and the trial proceeded.
On 16 October 2018, the jury (by that stage having been reduced to 11) retired to consider its verdict. The following day, a verdict of guilty of murder was returned.
Thereafter, I received documentary and oral evidence in proceedings on sentence conducted on 1 November and 6 December 2018 (the matter was delayed a little by a logistical problem with regard to a psychiatric report).
It now falls to me, after having had the benefit of an extended period of reflection, to sentence the offender today.
The maximum penalty for the offence of murder is imprisonment for life without possibility of parole. Parliament has also provided, in the circumstances of this case, a standard non-parole period of 20 years. I regard each of those periods as important guideposts in my exercise of the sentencing discretion.
With regard to my findings of fact, I am of course bound by the verdict of the jury, and its establishment of the elements of the offence. Aggravating features posited by the Crown, above and beyond those elements, must be proven beyond reasonable doubt; mitigating features relied upon by the offender need only be proven on the balance of probabilities. Some matters, inevitably, will remain a mystery.

Background

How it was that the offender came to murder the deceased can be understood by the following context.
In the years 2011 and 2012, the offender was incarcerated in Junee gaol, serving a reasonably lengthy sentence for offences of dishonesty. There he met the man whom I shall…

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 Dunstall (No 4)

Details

AGLC: R v Dunstall (No 4) [2018] NSWSC 1923
Case: [2018] NSWSC 1923
Decision Date: 13 December 2018

CaseChat Overview and Summary

The respondent was found guilty by a jury of the murder of his wife. This was his fourth appearance before the Court of Appeal following a number of appeals against conviction and sentence. The respondent had a criminal history which included offences of dishonesty. At the latest appeal, the respondent sought to challenge the sentence imposed by the primary judge. The sentence was a life sentence with a non-parole period of 28 years. The appeal was dismissed by the Court of Appeal.
The legal issues before the Court of Appeal related to whether the sentence imposed was manifestly inadequate. In considering this, the Court had to consider both the objective and subjective features of the offence, the character and circumstances of the offender and the principle of parity. The Court also had to consider whether the sentence imposed was manifestly excessive. The Court found that the sentence was not manifestly inadequate. The Court found that the sentence was a just and appropriate response to the offence committed. The Court also found that the sentence was not manifestly excessive.

The Court found that the murder was planned and premeditated, with the offender luring his wife to a remote location and then murdering her. The Court found that the offender had a history of offending and deception. The Court found that the offender had not shown any remorse and continued to maintain his innocence. The Court found that the sentence imposed was appropriate in the circumstances. The Court found that the sentence reflected the seriousness of the offence and the offender's history of offending. The Court found that the sentence was not manifestly excessive.
The Court dismissed the appeal and affirmed the sentence imposed by the primary judge. The Court found that the sentence was a just and appropriate response to the offence committed. The Court found that the sentence reflected the seriousness of the offence and the offender's history of offending. The Court found that the sentence was not manifestly excessive.

Orders