Dean v R [2019] NSWCCA 27

Dean v R [2019] NSWCCA 27

Although Count 4 was framed in terms that disclosed an offence known to law, the disputed fact of which indictable offence the applicant intended to commit was essential in the circumstances and should have been particularised. The Crown's failure to identify that offence, combined with the sentencing judge's determination of intent as a preliminary issue before all relevant sentencing material and sworn evidence were available, deprived the applicant of a fair opportunity to litigate the factual basis of the charge and was productive of procedural and substantive unfairness. The conviction on Count 4 and the sentences dependent on it were therefore quashed and the matter remitted.

Jurisdiction
Australia
Judgment Date
14 February 2019
Procedural Posture
Criminal Appeal Against Sentence and Conviction / Court of Criminal Appeal Reasons for Orders Made on 20 July 2018 After Guilty Pleas and Sentence in the District Court
Outcome
Conviction on Count 4 quashed; aggregate sentence on the State offences quashed; sentence on the Commonwealth offence quashed; matter remitted to the District Court for further hearing.
Legal Topics
['firearms Offences' 'possessing an Offensive Weapon With Intent to Commit an Indictable Offence' 'particulars of Indictment' 'natural Justice' 'procedural Fairness' 'substantive Fairness' 'guilty Plea' 'appeal Against Sentence' 'appeal Against Conviction']
['criminal Law' 'criminal Procedure' 'sentencing'] ['firearms Offences' 'possessing an Offensive Weapon With Intent to Commit an Indictable Offence' 'particulars of Indictment' 'natural Justice' 'procedural Fairness' 'substantive Fairness' 'guilty Plea' 'appeal Against Sentence' 'appeal Against Conviction']

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Procedural Posture

Criminal Appeal Against Sentence and Conviction / Court of Criminal Appeal Reasons for Orders Made on 20 July 2018 After Guilty Pleas and Sentence in the District Court

Legal Issues

  1. 1 ["Whether the sentence proceedings miscarried because the sentencing judge was asked to determine as a preliminary issue the applicant's intention when he possessed the firearm." 'Whether the failure to particularise the indictable offence the applicant was alleged to have intended to commit was productive of a denial of natural justice.' "Whether the Crown's framing of Count 4 without identifying the indictable offence deprived the applicant of the opportunity to litigate factual matters inherent in the elements of the offence." 'Whether the conviction on Count 4 and the sentences imposed should be quashed.']

Ratio Decidendi

Although Count 4 was framed in terms that disclosed an offence known to law, the disputed fact of which indictable offence the applicant intended to commit was essential in the circumstances and should have been particularised. The Crown's failure to identify that offence, combined with the sentencing judge's determination of intent as a preliminary issue before all relevant sentencing material and sworn evidence were available, deprived the applicant of a fair opportunity to litigate the factual basis of the charge and was productive of procedural and substantive unfairness. The conviction on Count 4 and the sentences dependent on it were therefore quashed and the matter remitted.

Court Disposition

Conviction on Count 4 quashed; aggregate sentence on the State offences quashed; sentence on the Commonwealth offence quashed; matter remitted to the District Court for further hearing.

Orders

  • ['The applicant is to file an amended notice of appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 and against conviction pursuant to s 5(1)(a) [sic – s 5(1)(b)] of the Criminal Appeal Act 1912 by 5pm 20 July 2018.' 'Leave granted to amend Ground 1 of the Notice of Appeal.' 'The conviction...