AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 24 April 2019

Dixon v Regina

[2019] NSWCCA 85

Assault & violenceTheft & propertyDomestic & family violence
CRIME PROPERTY OFFENCES ENTER DWELLING CIRCUMSTANCES OF AGGRAVATION DOMESTIC VIOLENCE FORM 1 OFFENCE. SENTENCING

Citation: Dixon v Regina [2019] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 24 April 2019
Judges: Bathurst CJ; Ierace J; Hidden AJ

Background

The applicant, an Aboriginal man then aged 44, pleaded guilty to entering a dwelling in circumstances of aggravation under s 111(2) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that he knew a person was present inside. The offence carried a maximum of 14 years imprisonment. An additional charge of intimidating the victim with intent to cause fear of physical or mental harm was taken into account on a Form 1 (a procedural mechanism allowing related charges to be acknowledged at sentencing without a separate conviction).

The incident occurred in October 2016. The applicant was seen sliding under a partially open garage roller door while the victim sat inside doing paperwork. When the applicant stood up inside the garage, he was holding a metal tyre socket. He left the garage, at which point a confrontation occurred on the road involving the applicant raising the socket in a striking position, before a neighbour assisted in pulling him to the ground.

The applicant had spent approximately 16 years, or 64 per cent of his adult life, in custody since age 18. His background involved significant disadvantage, including childhood physical and sexual abuse, neglect, homelessness, and long-term dependence on illicit drugs. The sentencing judge originally imposed 4 years and 11 months imprisonment with a non-parole period of 3 years and 2 months. The applicant sought leave to appeal that sentence as excessive.

  • Whether the sentencing judge erred by failing to take into account the risk of institutionalisation when finding special circumstances (that is, circumstances justifying a longer-than-standard parole period)
  • Whether the sentencing judge erred in the assessment of objective seriousness by factoring in the applicant's criminal record and his status as a parolee at the time of the offence
  • Whether the sentence was manifestly excessive

Decision

Institutionalisation and special circumstances: The sentencing judge found special circumstances but gave no reasons for doing so. Under s 44(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a failure to provide reasons for a special circumstances finding does not itself constitute an error. The Court of Criminal Appeal noted, however, that this case illustrated why providing reasons is nonetheless desirable. On the facts, the Court found the sentencing judge had adequately taken into account both the need for rehabilitation and the extent of the applicant's prior incarceration, and no error was established on this ground.

Objective seriousness: The court found that the sentencing judge had erred in assessing the objective seriousness of the offence by factoring in both the applicant's criminal history and his status as a parolee at the time of the offending. These are matters personal to the offender, not characteristics of the offence itself. They may be relevant at other stages of the sentencing exercise but must not be used to inflate the objective gravity of the conduct.

The applicant also argued the sentencing judge had wrongly treated the offence as a "break and enter," which carries different elements. The Court rejected this ground, finding the reference to "broke" in the sentencing remarks was a verbal slip. The sentencing judge had correctly identified the charged provision and its maximum penalty throughout, indicating no actual error in the characterisation of the offence.

Manifest excess: Because error was established on the objective seriousness ground, the Court proceeded to resentence without needing to determine whether the original sentence was manifestly excessive as a standalone ground. On resentencing, the Court applied a 10 per cent discount for the guilty plea (consistent with the original sentencing), took the Form 1 offence into account, and imposed a reduced total sentence of 4 years with a non-parole period of 2 years and 6 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence set aside
  • In substitution: total term of 4 years imprisonment commencing 31 October 2016 and expiring 31 October 2020, with a non-parole period of 2 years and 6 months expiring 30 April 2019, and a balance of term of 1 year and 6 months expiring 31 October 2020

Key Takeaways

  • A sentencing court commits legal error when it uses an offender's criminal history or status as a parolee to increase its assessment of the objective seriousness of an offence. Those factors are personal to the offender and belong at a different stage of the sentencing analysis.
  • Under s 44(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), failure to give reasons for a special circumstances finding is not itself an error. The Court of Criminal Appeal nonetheless signalled that reasons remain desirable in practice, particularly where institutionalisation is raised.
  • Where a risk of institutionalisation is argued as a sentencing factor, it is not sufficient merely to identify the submission. This decision illustrates that sentencing courts are expected to engage with evidence of extensive prior incarceration when structuring the parole component of a sentence.
  • A verbal slip in sentencing remarks using a legally incorrect description of an offence does not constitute error where the sentencing judge correctly identified the charged provision and applicable maximum penalty throughout.
  • The significant background of hardship and disadvantage of an Aboriginal offender, including childhood abuse, neglect, substance dependency, and prolonged periods in custody, remains a relevant consideration at sentence, consistent with R v Bugmy (2013) 249 CLR 571.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 111(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(3)

Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Elhassan v R [2018] NSWCCA 118
- Gommesen v R [2012] NSWCCA 226
- Hart v R [2014] NSWCCA 172
- Hili v R; Jones v R (2010) 242 CLR 520
- Hurst v R [2017] NSWCCA 114
- Judge v R [2018] NSWCCA 203
- McCabe v The Queen [2016] NSWCCA 7
- Pham v R (2015) 256 CLR 550
- R v Bugmy (2013) 249 CLR 571
- R v McNaughton (2006) 66 NSWLR 566
- R v Whyte (2002) 55 NSWLR 252
- RG v R [2017] NSWCCA 60
- Rotner v R [2011] NSWCCA 207
- Veen v R (No 2) (1988) 164 CLR 465