Dixon v R [2020] NSWCCA 123

Dixon v R [2020] NSWCCA 123

The sentencing judge's finding that the applicant was the person who fired the shotgun could not stand because one of the reasons for that finding was incorrect: the agreed facts included Mr Freeman's observation that the tallest of the three men pulled out what appeared to be a sawn-off shotgun. That factual error affected the indicative sentence for Count 2 and placed the aggregate sentence in doubt. The sentencing judge did not err in assessing Count 1 below midrange or in considering Bugmy factors, but did err in assessing Counts 3 and 4 above low range given the sparse evidence about possession, ownership, accessibility or use. House v The King error was established and the applicant...

Jurisdiction
Australia
Judgment Date
11 June 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Pursuant to S 5(1)(c) of the Criminal Appeal Act 1912 (nsw)
Outcome
Leave granted, appeal allowed, original sentence quashed and applicant re-sentenced.
Legal Topics
['sentence Appeal' 'firearm Offences' 'aggregate Sentence' 'objective Seriousness' 'bugmy Considerations' 'manifest Excess' 'house V the King Error']
['criminal Law' 'sentencing'] ['sentence Appeal' 'firearm Offences' 'aggregate Sentence' 'objective Seriousness' 'bugmy Considerations' 'manifest Excess' 'house V the King Error']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Pursuant to S 5(1)(c) of the Criminal Appeal Act 1912 (nsw)

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the criminality of Count 2 by finding beyond reasonable doubt that the applicant actually discharged the firearm.' 'Whether the sentencing judge erred in assessing the criminality of Counts 1, 3 and 4.' "Whether the sentencing judge failed to apply the principles in Bugmy v R to the applicant's deprived and violent upbringing." 'Whether the sentence imposed was manifestly excessive.' 'What sentence should be imposed on re-sentence after identified error.']

Ratio Decidendi

The sentencing judge's finding that the applicant was the person who fired the shotgun could not stand because one of the reasons for that finding was incorrect: the agreed facts included Mr Freeman's observation that the tallest of the three men pulled out what appeared to be a sawn-off shotgun. That factual error affected the indicative sentence for Count 2 and placed the aggregate sentence in doubt. The sentencing judge did not err in assessing Count 1 below midrange or in considering Bugmy factors, but did err in assessing Counts 3 and 4 above low range given the sparse evidence about possession, ownership, accessibility or use. House v The King error was established and the applicant...

Court Disposition

Leave granted, appeal allowed, original sentence quashed and applicant re-sentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'The sentence imposed by Grant DCJ at Parramatta on 20 September 2019 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 8½ years, commencing 1 May 2017 and expiring 31 October 2025, with a non-parole period of 5 years, expiring 30...