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Court of Criminal Appeal 26 March 2025

Dent v R

[2025] NSWCCA 43

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE STATUTORY AGGRAVATING FACTORS PROCEDURAL FAIRNESS THRESHOLD OF MATERIALITY

Citation: Dent v R [2025] NSWCCA 43
Court: Court of Criminal Appeal
Date: 26 March 2025
Judges: Basten AJA; McNaughton J; Weinstein J

Background

The applicant pleaded guilty in the District Court to one count of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). While affected by drugs, he attended a hardware store and attacked a random, unsuspecting member of the public with an axe, without warning or provocation. The sentencing judge imposed five years and four months imprisonment with a non-parole period of four years.

At sentencing, the applicant put forward a substantial subjective case: a guilty plea, medical diagnoses, no prior convictions, time on strict bail conditions, acceptance of responsibility, prior good character, good prospects of rehabilitation, childhood social disadvantage, and delay. The sentencing judge considered all of these matters.

However, the sentencing judge also found, without any prior notice to the parties, that the offence was committed "without regard for public safety." This is a statutory aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown had not pursued it, the defence had not conceded it, and the judge had not foreshadowed it before delivering sentence. The applicant sought leave to appeal on two grounds: that the aggravating factor finding was procedurally unfair and factually unsupported, and that the sentence was manifestly excessive.

  • Whether the sentencing judge breached procedural fairness by relying on the "without regard for public safety" aggravating factor without alerting the parties beforehand
  • Whether the finding that the offence was committed "without regard for public safety" was established beyond reasonable doubt on the evidence
  • Whether the sentence of five years and four months (with a four-year non-parole period) was manifestly excessive, having regard to the applicant's subjective case

Decision

Ground 1: Procedural fairness and the aggravating factor

Weinstein J (with McNaughton J agreeing) found there was a technical breach of procedural fairness in the sense that the applicant was not alerted to the possibility of the finding and had no opportunity to address it. However, his Honour held that the breach caused no practical injustice. The inference that the applicant had acted without regard for public safety was easily and inevitably drawn from the fact that the offence occurred at retail premises with members of the public in close proximity. Because the finding was inevitable beyond reasonable doubt, no different outcome could have resulted had the parties been given notice.

Basten AJA reached the same result by a different path. His Honour held there was no procedural unfairness at all, because the principle operates on material that is not already obvious to the affected party. Where a relevant circumstance is obvious, the demands of procedural fairness are not engaged. The applicant's complete disregard for the safety of those around him was plain on the facts, and no notice was required.

Both lines of reasoning led to the same conclusion: the first ground of appeal failed.

Ground 2: Manifest excess

The Court acknowledged the sentence was "stern" with respect to both the head sentence and the non-parole period. The purposes of sentencing, however, pull in competing directions, and a sentencing judge is not required to arrive at any single correct sentence. Weinstein J found that the sentencing judge had carefully considered every mitigating factor advanced by the applicant, had given the subjective case sufficient weight, and had arrived at a sentence that was neither unreasonable nor unjust and fell within the available range. The second ground also failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A breach of procedural fairness at sentencing will not lead to a successful appeal where the impugned finding was inevitable and no practical injustice resulted from the failure to give notice.
  • Basten AJA confirmed that procedural fairness is directed at adverse material that may not be obvious to the affected party: where a relevant circumstance is plainly apparent from the agreed facts, no obligation to alert the parties arises.
  • Under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, the "without regard for public safety" aggravating factor may be satisfied even where only one victim was attacked, if the circumstances (such as a public retail setting with bystanders present) objectively created a risk to others.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that there is no single correct sentence and that an appellate court will not intervene merely because a sentence is stern, provided it falls within the available range and the sentencing judge balanced all relevant considerations.
  • No error is established on appeal simply because a sentencing judge did not explicitly enumerate every mitigating factor, provided the record shows each matter was considered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 35
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A
- Criminal Appeal Act 1912 (NSW) s 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- He v Sun (2021) NSWLR 518; [2021] NSWCA 95
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hordern v R [2019] NSWCCA 138
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kioa v West (1985) 159 CLR 550; [1985] HCA 81
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Chisari [2006] NSWCCA 19
- R v Dodd (1991) 57 A Crim R 349
- R v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348
- R v Esho [2001] NSWCCA 415
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Quarta [2023] NSWCCA 173
- R v Saleib [2005] NSWCCA 85
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145