Dawson v R [2021] NSWCCA 53

Dawson v R [2021] NSWCCA 53

Leave to rely on Grounds 1A and 1B was refused because the Bugmy principles were not raised in the sentence proceedings, either directly or incidentally, and the evidence did not require the sentencing judge to consider them in the absence of a submission; the sentencing judge took the applicant's subjective material into account. Leave was granted on Ground 2, but the appeal was dismissed because the differences between the applicant and the co-offender, including the applicant's greater violence, property damage, breach of parole, more serious criminal history, poorer rehabilitation prospects and the different offence charged for the co-offender's second matter, justified the sentencing...

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW
Outcome
Leave refused on Grounds 1A and 1B; leave granted on Ground 2; appeal dismissed.
Legal Topics
['aggravated Break, Enter and Commit Serious Indictable Offence' 'bugmy Considerations' 'fernando Principles' 'parity Principle' 'breach of Parole' 'objective Seriousness' 'subjective Circumstances']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Commit Serious Indictable Offence' 'bugmy Considerations' 'fernando Principles' 'parity Principle' 'breach of Parole' 'objective Seriousness' 'subjective Circumstances']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account the principles stated in Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58.' 'Whether the sentencing judge erred by failing to give reasons as to whether, why and how the principles in Bugmy and Fernando were taken into account.' 'Whether the applicant had a justifiable sense of grievance when comparing the sentences imposed on him with the sentence imposed on his co-offender.']

Ratio Decidendi

Leave to rely on Grounds 1A and 1B was refused because the Bugmy principles were not raised in the sentence proceedings, either directly or incidentally, and the evidence did not require the sentencing judge to consider them in the absence of a submission; the sentencing judge took the applicant's subjective material into account. Leave was granted on Ground 2, but the appeal was dismissed because the differences between the applicant and the co-offender, including the applicant's greater violence, property damage, breach of parole, more serious criminal history, poorer rehabilitation prospects and the different offence charged for the co-offender's second matter, justified the sentencing...

Court Disposition

Leave refused on Grounds 1A and 1B; leave granted on Ground 2; appeal dismissed.

Orders

  • ['In relation to Grounds of Appeal 1A and 1B, refuse leave to the applicant to rely on those grounds.' 'In relation to Ground of Appeal 2, grant leave to appeal but dismiss the appeal.']