AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 February 2020

R v Dean

[2020] NSWDC 11

Firearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL SENTENCING FIREARMS POSSESSION OFFENCE OTHER FIREARMS OFFENCES DISCOUNT FOR GUILTY PLEAS

Citation: R v Dean [2020] NSWDC 11
Court: District Court of New South Wales
Date: 13 February 2020
Judge: Abadee DCJ

Background

The offender was re-sentenced across seven indictable offences (six state, one Commonwealth) and five related offences, following a successful appeal to the Court of Criminal Appeal against an earlier aggregate sentence. The offending occurred on 12 July 2015 and arose from the offender learning that his estranged wife, against whom an Apprehended Violence Order (AVO) had been made, had entered into a relationship with a former friend.

Throughout that day, the offender sent his estranged wife a series of threatening voicemail messages while heavily intoxicated. He later retrieved a semi-automatic rifle, fired it into the air near a public place, then drove toward her home while making explicit threats to kill her. Police intercepted his vehicle approximately 25 metres from her address, with the loaded rifle on the back seat.

The procedural history was significant. At the original sentencing, the relevant intent for the firearm possession offence had been assessed as an intent to commit murder. Following the appeal, the offender was retried on that count. A jury acquitted him of possessing a firearm with intent to commit murder, but convicted him of possessing an offensive weapon with intent to intimidate (under s 33B(1) of the Crimes Act 1900 (NSW)). Abadee DCJ was therefore required to sentence the offender afresh across all offences, on the basis that the specific intent in possessing the firearm was intimidation rather than murder.

  • Whether the change in the established specific intent (from murder to intimidation) required a fresh approach to sentencing all related offences
  • How to apply the guilty plea discount across multiple offences, including one Commonwealth offence
  • How to balance aggravating factors (including the domestic violence context, the involvement of children, and the presence of an AVO) against mitigating factors (including the offender's personal circumstances and remorse)
  • How to structure the aggregate sentence for state offences alongside a separate sentence for the Commonwealth offence, consistent with the requirements of the Crimes Act 1914 (Cth)
  • The appropriate non-parole periods for both the state and Commonwealth components of the overall sentence

Decision

Abadee DCJ conducted the sentencing afresh as required by the Court of Criminal Appeal's earlier decision. The change in the established specific intent, from murder to intimidation, was central to the re-sentencing exercise. His Honour found that this shift materially affected the characterisation of the offending and required each offence to be assessed accordingly.

The offending was treated as serious. It occurred in a domestic violence context, in breach of an existing AVO, while the offender was heavily intoxicated, and involved explicit threats to kill made directly to the victim and within the hearing of children. Aggravating factors under the relevant sentencing legislation included the vulnerability of the victim, the family violence context, and the fact that the offender was under the influence of alcohol while handling a loaded firearm.

Guilty pleas were entered at various stages across the different charges, and the discount applied to each was calibrated to reflect the timing of those pleas. For the Commonwealth offence (using a carriage service to threaten to kill, under s 474.15(1) of the Criminal Code Act 1995 (Cth)), the sentencing framework under the Crimes Act 1914 (Cth) applied separately, requiring specific findings as to mitigating and aggravating factors under that federal scheme.

His Honour structured the overall sentence so that the head sentence for the aggregate state offences ran first, with the Commonwealth sentence commencing upon its expiry. The non-parole period for the Commonwealth sentence was set to expire on the date of the sentencing remarks themselves, meaning the offender would immediately become eligible for parole consideration on the federal component.

Orders Made

  • Aggregate sentence for the six state indictable offences: 7 years' imprisonment, commencing 12 July 2015 and ending 11 July 2022, with a non-parole period of 4 years, 7 months and 2 days ending 13 February 2020
  • For the Commonwealth offence (use of carriage service to threaten to kill): 3 years' imprisonment commencing 14 February 2020 and ending 13 February 2023, with a non-parole period of 1 year, 11 months and 30 days ending 12 February 2022
  • The court noted that release to parole on the Commonwealth sentence was not automatic and would be subject to a hearing before the Parole Authority

Key Takeaways

  • A jury acquittal on a primary count can require the sentencing court to re-examine the specific intent underlying related offences, with material consequences for how each offence is assessed and sentenced.
  • Where a successful sentencing appeal results in a retrial that returns a different verdict, the court must sentence afresh across all offences to reflect the verdict actually returned, not the intent assumed at the original sentencing.
  • Guilty plea discounts are calibrated to the timing of each plea individually, and a plea offered early but not formalised until shortly before trial may attract a reduced discount.
  • Sentencing for a Commonwealth offence alongside state offences requires separate application of the federal sentencing framework under the Crimes Act 1914 (Cth), including distinct findings on aggravating and mitigating factors.
  • The domestic violence context, breach of an AVO, heavy intoxication during firearms handling, and the presence of children as witnesses to threats all operated as aggravating features in the assessment of the overall sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1), 58, 93G(1)
- Criminal Code Act 1995 (Cth), s 474.15(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(5AA), 25F(3)
- Crimes Act 1914 (Cth), ss 16A, 17A(1), 19AJ
- Firearms Act 1996 (NSW), ss 36(1), 39(1)(a), 64(1), 65(3)
- Road Transport Act 2013 (NSW), s 112(1)(a)

Cases
- Dean v R [2019] NSWCCA 27
- Cheung v The Queen (2001) 209 CLR 1
- The Queen v Olbrich (1999) 199 CLR 270
- Munda v Western Australia (2013) 249 CLR 600
- R v Maltese [2004] NSWCCA 408
- R v Mostyn (2004) 145 A Crim R 304
- Greenwood v Regina [2014] NSWCCA 64
- Wood v R [2019] NSWCCA 309
- R v Mallia [2007] NSWDC 324
- R v Betts [2017] NSWDC 124
- TW (No.2) [2014] ACTA 37