Dennis v R [2024] NSWCCA 137

Dennis v R [2024] NSWCCA 137

The sentencing judge made an error of fact by treating a statement that there was a child in the home as equivalent to an agreed or proved fact, and by treating that supposed fact as aggravating the Form 1 intimidation offence. The judge also erred in admitting and considering the applicant's juvenile criminal history contrary to s 15 of the Children (Criminal Proceedings) Act 1987. Because the factual error could have affected the sentence, and the juvenile-history error had the capacity to affect sentence, leave was granted, the District Court sentence was quashed, and the applicant was re-sentenced.

Jurisdiction
Australia
Judgment Date
26 July 2024
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave Granted and Applicant Re Sentenced
Outcome
Leave to appeal granted; sentence quashed; applicant re-sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years and 9 months.
Legal Topics
['appeal Against Sentence' 'form 1 Offences' 'aggravating Circumstances' 'juvenile Criminal History' "children's Court Records" 'manifest Excess' 're Sentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'form 1 Offences' 'aggravating Circumstances' 'juvenile Criminal History' "children's Court Records" 'manifest Excess' 're Sentencing']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave Granted and Applicant Re Sentenced

Legal Issues

  1. 1 ['Whether the sentencing judge mistook the facts when finding that the intimidation offence was aggravated by the offending being proximate to, and in the home of, a child.' "Whether the sentencing judge erred in admitting into evidence, and having regard to, entries on the applicant's Children's Court criminal history." 'Whether the sentence was manifestly excessive.' 'What sentence should be imposed on re-sentence.']

Ratio Decidendi

The sentencing judge made an error of fact by treating a statement that there was a child in the home as equivalent to an agreed or proved fact, and by treating that supposed fact as aggravating the Form 1 intimidation offence. The judge also erred in admitting and considering the applicant's juvenile criminal history contrary to s 15 of the Children (Criminal Proceedings) Act 1987. Because the factual error could have affected the sentence, and the juvenile-history error had the capacity to affect sentence, leave was granted, the District Court sentence was quashed, and the applicant was re-sentenced.

Court Disposition

Leave to appeal granted; sentence quashed; applicant re-sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years and 9 months.

Orders

  • ['Grant leave to appeal.' 'Quash the sentence imposed in the District Court of NSW on 22 May 2023.' 'In lieu thereof, impose a sentence of 7 years, with a non-parole period of 3 years and 9 months.' 'Such sentence to commence on 13 March 2021. The earliest date upon which the appellant will be eligible for release...