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Court of Criminal Appeal 11 June 2020

Dixon v R

[2020] NSWCCA 123

Firearms & weapons
CRIMINAL LAW SENTENCE APPEAL FIREARM OFFENCES APPLICATION BY OFFENDER [2013] HCA 37 PROPERLY APPLIED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Dixon v R [2020] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 11 June 2020
Judge(s): Hoeben CJ at CL; Harrison J; Beech-Jones J

Background

The applicant was sentenced in the Parramatta District Court in September 2019 to an aggregate term of 11 years imprisonment (non-parole period of 7 years) for four offences arising from two related incidents in April 2017. The offences included using an offensive weapon with intent to commit an indictable offence, firing a firearm at a dwelling house with reckless disregard for safety, and two counts of possessing a shortened firearm without authority.

The facts, which were agreed, described a 70-year-old victim who was first confronted at his home by the applicant brandishing a rifle, and then, some weeks later, was the target of a coordinated late-night attack at his unit by the applicant and two other men. During that second incident, a shotgun was discharged through the victim's rear window from the carpark, shattering glass and causing a minor injury to the victim's head.

The applicant sought leave to appeal against his sentence under the Criminal Appeal Act 1912 (NSW), arguing errors in the sentencing judge's assessment of criminality, failure to properly apply the Bugmy principles, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by finding the applicant was the person who actually discharged the firearm during the dwelling house incident (Count 2), when the agreed facts did not establish this
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the remaining counts (Counts 1, 3 and 4)
  • Whether the sentencing judge, having accepted that the principles in Bugmy v R (2013) 249 CLR 571 applied to the applicant's background, then failed to give those principles proper weight in the sentence
  • Whether the aggregate sentence of 11 years was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on multiple grounds. A factual error was identified at the heart of the indicative sentence for Count 2: the agreed facts established only that the applicant was present and participated in the group attack, but did not identify him as the person who discharged the firearm. The sentencing judge had nonetheless assessed the applicant's criminality as though he were the shooter, which inflated the indicative sentence for that count.

On the Bugmy issue, the Court found that although the sentencing judge had acknowledged the applicant's deprived background and accepted that the Bugmy principles applied, those principles had not been meaningfully reflected in the sentence actually imposed. The Bugmy principles require that background deprivation be taken into account as genuinely mitigating, not merely noted and then set aside.

The Court also identified an error in the assessment of Counts 3 and 4 (possession of the shortened firearms). The agreed facts recorded that photographs of the applicant holding the weapons were taken on 18 April 2017, some days before the dwelling house offence, suggesting a more limited period of possession than had been found by the sentencing judge.

Taking all errors together, the Court conducted a re-sentence by way of instinctive synthesis. Although Count 2 remained characterised as mid-range in objective seriousness, the Court noted that the applicant's role as a participant rather than the shooter was a relevant distinction. The aggregate sentence was reduced to 8 years and 6 months imprisonment with a non-parole period of 5 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • Applicant re-sentenced to an aggregate term of 8 years and 6 months imprisonment, commencing 1 May 2017 and expiring 31 October 2025, with a non-parole period of 5 years expiring 30 April 2022
  • Indicative sentences: Count 1, 3 years; Count 2, 5 years 6 months (non-parole period 3 years 3 months); Count 3, 1 year 6 months; Count 4, 1 year 6 months

Key Takeaways

  • A factual error in an indicative sentence, even for a single count within an aggregate sentence, can infect the overall sentence sufficiently to warrant re-sentencing by the appellate court.
  • The Court of Criminal Appeal confirmed that the Bugmy principles are not satisfied by mere acknowledgement: a sentencing court must demonstrably give effect to background deprivation as a mitigating consideration in the sentence ultimately imposed.
  • Where agreed facts do not identify an offender as the person who physically discharged a firearm during a group offence, sentencing on the basis that they were the shooter constitutes an error in the assessment of criminality.
  • Participating in a firearm attack on a dwelling house with reckless disregard for safety was still characterised as mid-range in objective seriousness, even where the offender was not the shooter, reflecting that the gravest version of such an offence involves the person who actually fires the weapon.
  • In re-sentencing across multiple counts, the Court applied the principles of accumulation, concurrency, and totality alongside specific and general deterrence, tempering the latter against the hardships established by the applicant's background.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 93GA(1), 112(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Ali v R [2010] NSWCCA 35
- Karout v R [2019] NSWCCA 253
- Mulato v Regina [2006] NSWCCA 282
- Powell v R [2014] NSWCCA 69
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Lambell [2019] NSWDC 78