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25
Court of Criminal Appeal 5 March 2004

REGINA v DUNN

[2004] NSWCCA 41

Also reported as (2004) 144 A Crim R 180
Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CROWN APPEAL AGAINST LENIENCY SENTENCE DOMESTIC VIOLENCE SERIOUSNESS BREACH OF APPREHENDED VIOLENCE ORDER SERIOUSNESS OF OFFENCE

Citation: Regina v Dunn [2004] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 5 March 2004
Judge(s): Ipp JA, Sully J, Adams J (Adams J delivered the leading judgment; Ipp JA and Sully J agreed)

Background

The respondent pleaded guilty to two offences arising from events on 11 July 2002. The first was breaking and entering the dwelling of his former de facto partner while armed with a Stanley knife, with which he inflicted three shallow lacerations to her neck. The second was assaulting her new partner, who attempted to intervene to protect her.

The respondent's history with the victim was extensive and serious. He had been convicted of assaults on her on two prior occasions, and at the time of the offences he was subject to both an apprehended violence order made specifically to protect her and a good behaviour bond that expressly prohibited him from molesting her. The break-and-enter itself involved significant premeditation: the respondent had entered the premises hours earlier by cutting a hole through the floorboards and concealed himself until the occupants returned home.

At first instance, the District Court sentenced the respondent to three years and nine months imprisonment with a non-parole period of one year and nine months on the break-and-enter charge, and a fixed term of one year and nine months on the assault charge. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate in light of the seriousness of the offending and the respondent's prior history of domestic violence.
  • Whether the respondent's medical condition (Addison's disease, a severe adrenal disorder affecting cognition under stress) was sufficient to justify the leniency of the original sentences.
  • Whether delay in filing the Crown appeal, between the DPP's notification letter and the actual filing, should moderate any increase to the sentence.
  • Whether special circumstances existed to justify a departure from the standard non-parole period formula under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Adams J found the original sentences were manifestly inadequate. The offending involved a high degree of premeditation, including entering the premises hours before the victim returned and concealing the point of entry. The attack was a serious escalation in a long pattern of domestic violence against the same victim, carried out in direct breach of an apprehended violence order and a good behaviour bond.

The respondent's Addison's disease was accepted as a relevant mitigating factor, given its capacity to produce confused or disordered thinking under emotional stress. However, the court found that this condition, while deserving of weight, could not justify the degree of leniency reflected in the original sentences. The court also noted that the respondent's pleas of guilty warranted a 25 per cent reduction in sentence.

Adams J expressed serious concern about the delay between the DPP's notification letter (26 June 2003) and the filing of the Notice of Appeal (4 September 2003), describing the delay as "unconscionable" in the absence of any explanation. The court treated this as a further mitigating consideration, reducing the extent of accumulation of the sentences to reflect it. The court also noted that, on a Crown appeal, the practice of the Court of Criminal Appeal is to impose a sentence meaningfully lower than what would have been warranted at first instance.

Special circumstances were found to justify a longer parole period, having regard to the respondent's age, medical condition, need for support on release, the accumulation of sentences, and the circumstances of the appeal.

Orders Made

  • Appeal allowed.
  • Sentences imposed in the District Court quashed.
  • On the charge of assault occasioning actual bodily harm: sentence of one year and nine months, commencing 11 July 2002 and ending 10 April 2004.
  • On the charge of breaking and entering a dwelling house in circumstances of special aggravation: sentence of four years and six months, commencing 10 December 2002 and ending 10 June 2007.
  • Earliest parole eligibility date: 10 July 2005.
  • Recommendation that the respondent's prison classification be reconsidered urgently.

Key Takeaways

  • A long pattern of domestic violence against the same victim, combined with offending in direct breach of an apprehended violence order and a good behaviour bond, significantly aggravates the seriousness of an already grave offence.
  • Premeditation in the manner of entry, including concealing the point of forced entry and lying in wait, was treated as a weighty factor elevating the objective seriousness of the break-and-enter.
  • Unexplained and significant delay by the Crown in filing a notice of appeal, after giving notice of its intention to appeal, was characterised as "unconscionable" and formed part of the court's reasoning in moderating the ultimate sentence increase.
  • Under established Court of Criminal Appeal practice, where a Crown appeal against leniency succeeds, the substituted sentence is set meaningfully below what would have been appropriate at first instance, to avoid double punishment from the appeal process itself.
  • Addison's disease, affecting cognition under stress, was accepted as a mitigating factor but was insufficient to bring a sentence otherwise manifestly inadequate within an acceptable range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 51A (specially aggravated breaking and entering)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) (standard non-parole periods)

Cases:
- Olbrich (1999) 108 A Crim R 464
- R v Davis [2003] NSWCCA 79
- R v Deluca [2002] NSWCCA 446
- R v Flavell [2002] NSWCCA 220
- R v Hellyer [2001] NSWCCA 384
- R v Irving [2003] NSWCCA 127
- R v LBK [2001] NSWCCA 248
- R v Morrison (unreported, NSWCCA, 5 September 1997)
- R v Letteri (unreported, NSWCCA, 18 March 1993)
- R v Prestwidge [2002] NSWCCA 439
- R v Sassin [2002] NSWCCA 47
- R v Talbot (unreported, NSWCCA, 19 December 1997)
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Scognamiglio (1991) 56 A Crim R 81
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Zibelnik [2002] NSWCCA 317