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Davey v The Queen

Davey v The Queen

Case [2010] VSCA 346 16 December 2010

Sentencing

Procedural Fairness

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0514

OWEN JAMES DAVEY
OWEN JAMES DAVEY	Applicant
v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 November 2009 and 18 June 2010
DATE OF JUDGMENT	16 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 346
JUDGMENT APPEALED FROM	[2006] VSC 173 (Osborn J)

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CRIMINAL LAW – Sentence – Applicant pleaded guilty to murder – Alleged Crown concession at plea hearing that applicant’s psychiatric illness reduced moral culpability and moderated weight to be accorded to general deterrence – Applicant sentenced on basis that moral culpability not significantly reduced by mental illness – Whether applicant denied procedural fairness – Obligations of Crown on sentence – Whether imprisonment more burdensome for applicant – Admissibility of further evidence as to applicant’s psychiatric condition – Application dismissed.

PRACTICE AND PROCEDURE – Extension of time – Application for leave to appeal against sentence.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Hollingworth AJA and agree with her that the application should be dismissed. I wish only to make brief comments on two matters. The first matter relates to the submission made by counsel for the applicant, under cover of grounds 1 and 2, that the learned sentencing judge did not accord procedural fairness to the applicant. The second matter concerns the question whether Dr Sullivan’s report of 25 March 2010 was admissible as fresh evidence.

At the plea hearing, it was common ground that the applicant was mentally ill. Counsel for the applicant submitted that the Crown had conceded that, as a consequence of his mental illness, the applicant’s moral culpability for the offence was reduced and that the principle of general deterrence should be moderated in sentencing him. Contrary to this concession, the judge had not taken account of these matters in sentencing the applicant.

At the plea hearing, Mr Davey’s counsel submitted that the applicant’s mental condition ‘bears on moral culpability, it bears on general deterrence and indeed if one goes to Tsiaras[1] it bears on specific deterrence as well’. He then said that the fact that the applicant had previously been convicted of the offence of assisting a suicide was ‘a very serious sentencing consideration’ but that once that was taken into account the judge should ‘insofar as you can, moderate the sentence because of my client’s psychiatric condition’. That was the full extent of counsel’s submissions about the relevance of the applicant’s psychiatric condition to the process of sentencing him.
[1]R v Tsiaras [1996] 1 VR 398 (‘Tsiaras’).

In his submissions, counsel for the Crown said that:

What I do say, Your Honour, is that in applying the principles in Yaldiz[2] and Tsiaras[3] and other cases such as Kelly,[4] Your Honour must not lose sight…

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.

Continue reading Davey v The Queen

Details

AGLC: Davey v The Queen [2010] VSCA 346
Case: [2010] VSCA 346
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Davey v The Queen involved a conviction for murder, where the applicant had pleaded guilty. The applicant's plea was predicated on a concession by the Crown that his psychiatric illness had reduced his moral culpability and should moderate the weight to be given to general deterrence. However, the sentencing judge determined that the moral culpability was not significantly reduced and imposed a sentence accordingly. The applicant argued that he was denied procedural fairness, and that the Crown had not fulfilled its obligations regarding the sentence. Additionally, the applicant submitted that imprisonment would be more burdensome for him due to his psychiatric condition. The case also involved an application for leave to appeal against the sentence, including an application for an extension of time.

The primary legal issues before the court were whether the applicant had been denied procedural fairness in the sentencing process, and whether the Crown had met its obligations in relation to the applicant's psychiatric condition. The court also had to consider whether imprisonment would be more burdensome for the applicant due to his psychiatric condition, and whether further evidence regarding the applicant's psychiatric condition should be admitted.

The court found that the sentencing judge had not denied the applicant procedural fairness, as the judge had considered the impact of the applicant's psychiatric illness on his moral culpability. The court held that the Crown had fulfilled its obligations in relation to the applicant's psychiatric condition, and that the sentence imposed was appropriate. The court further determined that the applicant's psychiatric condition did not render imprisonment more burdensome, and that the sentencing judge had appropriately considered the matter. The court rejected the admissibility of further evidence as to the applicant's psychiatric condition, finding that it would not have altered the sentence. The application for leave to appeal was dismissed, along with the application for an extension of time.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed, and the application for an extension of time was also dismissed.

Orders