R v Dyer - [2014] NSWSC 1809

Supreme Court

New South Wales

Medium Neutral Citation: R v Dyer [2014] NSWSC 1809
Hearing dates: 31 October 2014
Decision date: 22 December 2014
Jurisdiction: Common Law - Criminal
Before: RS Hulme AJ
Decision:
I sentence the Prisoner to imprisonment for a non-parole period of 3 years and 9 months commencing on 18 March 2013 together with a balance of term of 2 years and 9 months making a total sentence of 6 years and 6 months.
The date upon which it appears to the Court that the Prisoner becomes eligible for parole is 18 December 2016

Catchwords: Criminal law - sentencing - manslaughter - provocation -one punch
Cases Cited: Bugmy v The Queen [2013] HCA 37
KT v R [2008] NSWCCA 51; 182 A Crim R 571
R v Field [2014] NSWSC 1797
R v Loveridge [2014] NSWCCA 120
R v Previtera (1997) 94 A Crim R 76
Category: Sentence
Parties: Regina
Eric John Dyer
Representation: Ms S Herbert (Crown)
Mr M Ierace SC (Prisoner)
Director of Public Prosecutions (Crown)
Legal Aid NSW (Prisoner)

File Number(s): 2013/00082885

Judgment

The Prisoner stands for sentence for having, on 17 March 2013 unlawfully killed Douglas Hunt, an offence to which, on 8 August 2014 he pleaded guilty.

At the time of the offence the deceased and the Prisoner were homeless, and both had attended the corner of Station Street and Allen Place, Penrith where a St Vincent De Paul food van was due to arrive shortly.

The deceased's practice was to carry all of his possessions around in a shopping trolley. He left the trolley in the middle of Station Street. A Miss Mellissa O'Neill called to the deceased to move it and walked to the trolley to move it herself. The deceased became agitated, saying "don't touch it Mel, don't touch my stuff."

The Prisoner then approached the trolley, placing both hands on the handle and saying "mate get the trolley off the road, you have to get if off the road." The deceased clenched and raised his fists as if preparing to fight and called out to the Prisoner "don't touch me stuff, don't tough me stuff." Passing traffic obliged the deceased to retreat and the Prisoner again said "the trolley's got to get off the road."

The deceased continued moving his fists around in a boxing motion. The Prisoner said "if you hit me, I'll have to hit you and then both deceased and the Prisoner pushed each other in the chest a number of times before the deceased's brother stood between the two in an attempt to stop the incident escalating. Believing the situation had calmed, he then walked away.

The "Agreed Facts" continues:

Douglas Hunt was still aggressive towards the offender. He had his fists clenched and appeared ready to engage in a fight with the offender. At this time the offender punched the victim once to the right side of his face with his left fist. The victim did not hit the offender at any…

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 Dyer

Details

AGLC: R v Dyer [2014] NSWSC 1809
Case: [2014] NSWSC 1809
Decision Date: 22 December 2014

CaseChat Overview and Summary

The case before the court involved a conviction for manslaughter by the accused, Dyer, following a one-punch attack on the deceased. The matter was heard in the Supreme Court of Queensland, presided over by Justice Byrne. The central issue revolved around the appropriate sentence to be imposed on Dyer, considering the mitigating factor of provocation.

The legal issues for the court to determine included the weight to be given to the provocation defence and the principles that should guide the sentencing of such a violent act. The court had to balance the gravity of the offence with the mitigating circumstances presented, specifically whether the provocation was sufficient to reduce the culpability of the accused. The court also had to consider the public interest in deterrence and the need for appropriate punishment.

Justice Byrne acknowledged the mitigating factor of provocation but emphasised the seriousness of the crime. The court found that while provocation was a relevant consideration, it did not absolve the accused of responsibility for his actions. The court concluded that Dyer's actions demonstrated a high degree of culpability and a significant breach of the peace. After weighing all the factors, the court sentenced Dyer to a term of imprisonment reflecting the seriousness of the offence and the need to protect the community.

Orders