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R v Dyson

R v Dyson

Case [2023] NSWCCA 132 9 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Dyson [2023] NSWCCA 132
Hearing dates: 2 June 2023
Date of orders: 2 June 2023
Decision date: 09 June 2023
Before: Button J at [1]
Hamill J at [8]
Sweeney J at [9]
Decision:
Crown appeal dismissed.

Catchwords:
CRIME — Appeals — Crown appeal against inadequacy of sentence — Parity — Manifest excess — where respondent released from custody — evidence of rehabilitation — discretion to dismiss prosecution appeal — appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
CMB v Attorney General for New South Wales [2015] HCA 9
Dwayhi v R [2011] NSWCCA 67
Greaves v The Queen [2020] NSWCCA 140
Green v The Queen; Quinn v The Queen [2011] HCA 49
Jimmy v R [2010] NSWCCA 60
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
PG v R [2017] NSWCCA 179
R v Boney [2001] NSWCCA 432
R v Chandler; Chandler v R [2012] NSWCCA 135
Rosenberg v R [2022] NSWCCA 295
Shortland v R [2013] NSWCCA 4

Texts Cited:
Nil

Category: Principal judgment
Parties: Rex (Applicant)
Nathan Dyson (Respondent)
Representation:
Counsel:
A Bonnor (Applicant)
A Francis (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Askhan Tai Lawyers (Respondent)

File Number(s): 2021/00181765
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 72

Date of Decision:

22 March 2023

Before:

Priestley SC DCJ

File Number(s):

2021/00181765

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Director of Public Prosecutions appealed, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the aggregate sentence imposed on the Respondent in the District Court for two offences to which he had pleaded guilty in the Local Court, being directing the activities of an organised criminal group and supplying a commercial quantity of cocaine, with an offence of knowingly taking part in a commercial drug supply on a Form 1 in respect of the latter offence.

The issues were whether the sentencing judge erred in applying the parity principle, which resulted in the aggregate sentence imposed being manifestly inadequate.

An issue in the sentence proceedings in the District Court was the sentence imposed in the Local Court on a co-offender. The sentencing judge was troubled by the difference between the relative roles of the Respondent and the co-offender in the drug supply enterprise as described in the Agreed Facts for the Respondent’s sentence and in the different Agreed Facts for the co-offender’s sentence in the Local Court.

In sentencing the Respondent, the sentencing judge pronounced an aggregate sentence and then reduced that sentence by applying the parity principle. In doing so, his Honour proceeded on the basis of the co-offender’s role as stated in the Respondent’s facts for sentence, rather than in the co-offender’s facts for sentence.

The Court found that in…

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 Dyson

Details

AGLC: R v Dyson [2023] NSWCCA 132
Case: [2023] NSWCCA 132
Decision Date: 09 June 2023

CaseChat Overview and Summary

In the case of R v Dyson, the respondent, Dyson, was originally convicted of various criminal offences and sentenced to imprisonment. The Crown subsequently appealed against the adequacy of the sentence imposed on Dyson, arguing that it was manifestly inadequate and did not reflect the seriousness of the crimes committed. The appeal was heard in the relevant appellate court. The central legal issue for the court to determine was whether the original sentence imposed on Dyson was so inadequate that it warranted an increase in the punishment. The court was also required to consider the discretion to dismiss the prosecution's appeal given that Dyson had already been released from custody and demonstrated evidence of rehabilitation.

The court examined the principles of parity and the need to ensure that sentences reflect the seriousness of the crimes committed. It considered the nature and circumstances of the offences, the offender's criminal history, and the evidence of rehabilitation presented. The court determined that, while the sentence may have been on the lower end of the scale, it was not so inadequate as to be manifestly excessive. The court took into account Dyson's release from custody and the evidence of his rehabilitation, which indicated a reduced risk of reoffending. These factors, combined with the principles of parity and the need for proportionality, led the court to conclude that the original sentence was appropriate and that the appeal should be dismissed. The court exercised its discretion to dismiss the Crown's appeal, finding no grounds for increasing the sentence.

The final orders of the court were that the Crown's appeal against the inadequacy of the sentence was dismissed, and the original sentence imposed on Dyson remained in place. The court's decision underscored the importance of considering the principles of parity, proportionality, and the evidence of rehabilitation when assessing the adequacy of a sentence.

Orders