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Court of Criminal Appeal 14 February 2019

Dean v R

[2019] NSWCCA 27

Firearms & weaponsDomestic & family violence
SENTENCE

Citation: Dean v R [2019] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 14 February 2019
Judges: Hoeben CJ at CL, Fullerton J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to seven offences arising from events on 12 July 2015. The offending occurred in the context of a domestic dispute: the applicant had learned his estranged wife had entered a new relationship. He was arrested near her home carrying a loaded .22 calibre self-loading rifle.

Among the seven counts was a charge under s 33B(1)(a) of the Crimes Act 1900 (NSW): possessing an offensive weapon with intent to commit an indictable offence. The Crown alleged the intended offence was murder. The applicant maintained throughout that he only intended to intimidate his wife, not kill her.

The sentencing judge resolved that disputed question of intent as a "preliminary issue" at a separate preliminary hearing before the sentencing hearing. After receiving a statement of agreed facts, a police interview transcript, and photographs, the judge found beyond reasonable doubt that the applicant intended murder. He then proceeded to sentence on that basis.

  • Whether the sentencing proceedings miscarried because the judge determined the applicant's intent as a preliminary issue, separate from and prior to the sentencing hearing
  • Whether the failure to particularise the intended indictable offence in the count as charged denied the applicant natural justice
  • Whether the failure to particularise that fact amounted to a failure to allege an element essential to the charge
  • Whether the aggregate sentence for State offences was manifestly excessive
  • Whether the sentence for the Commonwealth carriage service offence was manifestly excessive or affected by irrelevant considerations

Decision

The Court of Criminal Appeal granted leave for the applicant to amend his notice of appeal to include a conviction appeal on Count 4. The Court found that the approach of resolving the applicant's intent as a preliminary issue, before the sentencing hearing and without the benefit of the applicant's sworn evidence, produced both procedural and substantive unfairness.

Fullerton J identified a particular concern about the evidence available at each stage. At the preliminary hearing, the applicant did not give sworn evidence. Later, at the sentencing hearing, his evidence and supporting material were effectively outside the scope of the judge's consideration on the intent question, which had already been resolved. The judge himself had acknowledged the potential unfairness of this approach but proceeded at the urging of the parties.

Fullerton J also raised a concern about the onus of proof. The judge appeared to have rejected the applicant's denials to police because he harboured a reasonable doubt about their credibility, rather than because the Crown had established the contrary beyond reasonable doubt. This raised a real question as to whether the onus had been reversed.

The Court noted that Count 4, as originally framed, omitted to particularise which indictable offence the applicant allegedly intended to commit. While an earlier version of the indictment had named murder as the intended offence, the count as ultimately presented did not. The Crown's case at the preliminary hearing was that the intended offence was murder, but this was not spelled out in the charge itself. The Court quashed the conviction on Count 4 and the associated sentences, and remitted the matter to the District Court.

Orders Made

  • Leave granted to file an amended notice of appeal against both sentence and conviction
  • Leave granted to amend Ground 1 of the notice of appeal
  • Conviction on Count 4 quashed
  • Aggregate sentence imposed on the State offences quashed
  • Sentence imposed on the Commonwealth offence quashed
  • Matter remitted to the District Court for further hearing

Key Takeaways

  • Determining a disputed question of intent as a "preliminary issue" before the sentencing hearing, where the defendant does not give evidence at that preliminary stage, can produce procedural unfairness sufficient to vitiate both the conviction and the sentence on that count.
  • A sentencing court that resolves a preliminary question of intent without having the defendant's sworn evidence before it risks deciding the issue on an incomplete evidentiary record, particularly where that evidence is later available but effectively excluded from consideration.
  • Under s 33B(1)(a) of the Crimes Act 1900, where the Crown alleges possession of an offensive weapon with intent to commit a specific indictable offence, the failure to particularise that intended offence in the charge can raise issues of natural justice and the adequacy of the indictment.
  • Where a sentencing judge appears to reject an accused's denials because of doubt about their credibility, rather than because the Crown affirmatively proved the contrary beyond reasonable doubt, this raises a question as to whether the burden of proof has been correctly applied.
  • On remitter, it is for the Crown to decide in the exercise of its prosecutorial discretion whether to frame the charge on the basis that the applicant intended to kill his wife; Fullerton J noted that if the Crown elects that course, a trial on the issue would appear inevitable.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 5(1)(c)
- Crimes Act 1900 (NSW), ss 33B(1)(a), 93G(1)(a)(i), 93G(1)(b)
- Firearms Act 1996 (NSW)
- Criminal Code Act 1995 (Cth), s 474.15(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- CB v Director of Public Prosecutions [2013] NSWSC 618
- R v VHP (Unreported, NSWCCA, 7 July 1997)