Dale Cairns (a Pseudonym) v The Queen - [2018] VSCA 333

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0101

DALE CAIRNS (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To prevent identification of the applicant, who was under 18 at the time of the offences, this judgment has been anonymised by the adoption of a pseudonym.

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JUDGES:	PRIEST, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 333
JUDGMENT APPEALED FROM:	DPP v Dale Cairns (a Pseudonym) (Unreported, County Court of Victoria, Judge Chettle, 11 May 2018)

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CRIMINAL LAW — Appeal — Sentence — Culpable driving causing death and associated offences — Driving at high speed to evade police — Applicant aged 17 at time of offences — Mild intellectual disability — Unfortunate upbringing — Sentence of 8 years’ imprisonment with non-parole period of 5 years — Whether sentence manifestly excessive — Whether double punishment — Appeal allowed — Resentenced to 6 years’ imprisonment with non-parole period of 4 years — Children, Youth and Families Act 2005 s 362 — CNK v The Queen (2011) 32 VR 641; DPP v Anderson (2013) 228 A Crim R 128; Fuller (a Pseudonym) v The Queen [2013] VSCA 186.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood and Mr L D J Cameron	Emma Turnbull Lawyers
For the Respondent	Mr R L Gibson	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WEINBERG JA:

The applicant’s history

The applicant, now aged 18 years,[2] has an IQ of 63, which places him in the mildly intellectually disabled range of intelligence. In September 2017, when he was aged 17 — and regarded by the law as a child[3] — he committed a series of offences, the most serious of which was culpable driving causing death on 19 September.
[2]He was born on 6 January 2000.
[3]Section 3(1) of the Children, Youth and Families Act 2005 relevantly provides:
child means—
(a) in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court; …
The applicant has, since the age of 11 years, been regularly before the Children’s Court. His record demonstrates that his conduct has, over a number of years, been remarkably anti-social. Hence, on 10 October 2011, he was before that court on charges of unlawful assault; theft; and criminal damage; and was released on an accountable undertaking. On 7 November 2011, he was dealt with for theft, and was again released on an accountable undertaking. In 2012, in August and October respectively, he was dealt with for criminal damage and theft from a shop, for which he received an accountable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 333
Decision Date: 7 December 2018

CaseChat Overview and Summary

The appellant, identified as Dale Cairns, appealed against his sentence for culpable driving causing death and associated offences, which occurred when he was 17 years old. The incident involved driving at high speed to evade police, resulting in a fatal accident. The Supreme Court of Victoria heard the appeal against the sentence of 8 years’ imprisonment with a non-parole period of 5 years. The court was required to determine whether the sentence was manifestly excessive and whether it amounted to double punishment, given the appellant's age, intellectual disability, and background. The appeal centred on the principle of proportionality and the need for appropriate sentencing for young offenders with mitigating factors.

The court examined the principles of sentencing for young offenders, including the relevance of age, intellectual disability, and personal circumstances. It referenced previous cases such as CNK v The Queen and DPP v Anderson, which established guidelines for sentencing minors. The court considered the Children, Youth and Families Act 2005, specifically section 362, which mandates consideration of the offender’s age and personal circumstances. The appellant’s mild intellectual disability and challenging upbringing were significant mitigating factors. The court found that the original sentence did not adequately account for these factors, leading to the conclusion that the sentence was manifestly excessive.

In light of these considerations, the court allowed the appeal and resentenced the appellant to 6 years’ imprisonment with a non-parole period of 4 years. The court held that the revised sentence was more proportionate to the severity of the offence, taking into account the appellant’s age and personal circumstances. The judgment underscored the importance of tailoring sentences to individual offenders, especially young people with mitigating factors. The court’s decision emphasised the need for a balanced approach in sentencing that recognises the unique challenges faced by young offenders.

The final orders of the court involved the resentencing of the appellant to 6 years’ imprisonment with a non-parole period of 4 years. This decision aligned with the principles of proportionality and individualised sentencing, ensuring that the sentence reflected the appellant’s age, intellectual disability, and background. The court’s ruling provided clarity on the appropriate considerations for sentencing young offenders in similar circumstances.

Orders