Regina v Joseph Brian Dickinson - [2005] NSWCCA 284

CITATION:
Regina v Joseph Brian Dickinson [2005] NSWCCA 284

HEARING DATE(S): 12 August 2005

JUDGMENT DATE:

16 August 2005

JUDGMENT OF:
Wood CJ at CL at 1; Simpson J at 1; Barr J at 1

DECISION:
Application dismissed.

CATCHWORDS:
Criminal law - sentencing - parole period - whether, in fixing a parole period, the court may have regard to the manner in which the sentence is to be served.

PARTIES:
Regina, Joseph Brian Dickinson

FILE NUMBER(S):
CCA 2004/2361

COUNSEL:
G Rowling
H Dhanji

SOLICITORS:
S Kavanagh
Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/2005

LOWER COURT JUDICIAL OFFICER:
Armitage QC DCJ

2004/2361

WOOD CJ at CL
SIMPSON J
BARR J
16 AUGUST 2005

REGINA v JOSEPH BRIAN DICKINSON

Judgment

1 THE COURT: This is an application under s43 Crimes (Sentencing Procedure) Act 1999 for an order to correct what is asserted to be a sentencing error. The applicant, Joseph Brian Dickinson, pleaded guilty in the District Court to one count of malicious wounding with intent to do grievous bodily harm and was sentenced to imprisonment for two years with a non-parole period of twelve months. The sentence was wholly suspended upon the applicant’s entering into a bond under s12 Crimes (Sentencing Procedure) Act. The Crown appealed to this Court, constituted as it now is. The Court allowed the appeal and substituted a sentence of imprisonment for two years and two months. The Court ordered the sentence to be served as periodic detention. The Court declined to set a non-parole period. In giving the first judgment of the Court, Barr J explained in these words why the Court had so declined -

The term that I impose would be a fixed term. In my opinion the fixed term is appropriate because the conditions of supervision that will apply will not require the imposition of a parole period.

2 Section 43 Crimes (Sentencing Procedure) Act is as follows -

43 Court may reopen proceedings to correct sentencing errors

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:

(a) imposed a penalty that is contrary to law, or

(b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:

(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order.

(3) For the purposes of this section, the court:

(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or

(b) if of the opinion that the person will not appear…

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.

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Details

Case: [2005] NSWCCA 284
Decision Date: 16 August 2005

CaseChat Overview and Summary

In Regina v Joseph Brian Dickinson, the defendant was sentenced to a term of imprisonment with a specified non-parole period. The case revolved around the legality and appropriateness of the non-parole period set by the sentencing court, particularly whether the court had the authority to consider the manner in which the sentence was to be served when determining the non-parole period. The court was called upon to decide if the sentencing judge had erred in setting the non-parole period by taking into account the conditions under which the defendant would serve his sentence.

The central legal issue before the court was whether, in fixing a parole period, the sentencing court may have regard to the manner in which the sentence is to be served. This involved interpreting the relevant statutory provisions and understanding the principles of sentencing in Australian criminal law. The court needed to determine if the sentencing judge had the discretion to consider the conditions of imprisonment, such as whether the defendant would serve the sentence in a high-security facility, when setting the non-parole period.

The court found that the sentencing judge did not err in taking into account the manner in which the sentence would be served when determining the non-parole period. The court held that it is within the discretion of the sentencing judge to consider the conditions of imprisonment, including security levels, when setting the non-parole period. The court emphasised that the primary consideration in sentencing is the protection of society and the deterrence of crime, and the conditions of imprisonment are relevant factors in achieving these objectives. Consequently, the non-parole period set by the sentencing judge was upheld as lawful and appropriate.

The court's decision clarified that the sentencing judge has the discretion to consider the manner in which a sentence is to be served when determining the non-parole period. This ruling provides guidance to sentencing courts in exercising their discretion and ensures that they can take into account relevant factors in setting the non-parole period. The final orders of the court affirmed the original sentence and non-parole period imposed on the defendant.

Orders