R v Dungay [2012] NSWCCA 197

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Dungay [2012] NSWCCA 197 Hearing dates: 31 August 2012 Decision date: 14 September 2012 Before: Macfarlan JA at [1] McCallum J at [2] Grove AJ at [43] Decision: Crown appeal against sentence dismissed Catchwords: CRIME - sentencing - Crown appeal - offence of recklessly causing grievous bodily harm - suspended sentence - whether sentence manifestly inadequate - strong evidence of rehabilitation following disrupted upbringing and frequent offending as a juvenile - consideration of purposes of sentencing Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Thawer [2009] NSWCCA 158 Muldrock v The Queen [2011] HCA 39 Category: Principal judgment Parties: Regina (applicant) Raymond Dungay (respondent) Representation: Counsel: N Norman (applicant) J Manuell SC (respondent) Solicitors: Solicitor of Public Prosecutions (applicant) Legal Aid NSW (respondent) File Number(s): 2011/196081 Publication restriction: None Decision under appeal Date of Decision: 2012-04-04 00:00:00 Before: McLoughlin DCJ File Number(s): 2011/196081

Judgment 1MACFARLAN JA: My reasons for joining in the making of the order made on 31 August 2012 are the same as those recorded in McCallum J's judgment. 2McCALLUM J: This is a Crown appeal against the sentence passed on Raymond Dungay after he pleaded guilty to an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 10 years. The offence carries a standard non-parole period under s 54A of the Crimes (Sentencing Procedure) Act 1999 of four years (item 4B of the table). 3The respondent was sentenced in the District Court at Port Macquarie on 4 April 2012. The learned sentencing judge determined that, had the respondent been convicted after trial, the appropriate sentence would have been imprisonment for two years and four months. Taking into account the respondent's plea of guilty at the first opportunity, and allowing a discount of 25% to reflect the utilitarian value of the plea, the judge reduced the sentence to a term of imprisonment of one year and nine months. The judge then determined to make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending the execution of the sentence and directing that the respondent be released on a good behaviour bond. 4The Crown's appeal was heard in this Court on 31 August 2012. The Court unanimously dismissed the appeal, reserving its reasons. These are my reasons for joining in the order made on that date.