SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Dawson v The Queen
Citation:
[2019] ACTCA 9
Hearing Date:
7 May 2019
DecisionDate:
7 May 2019
Before:
Murrell CJ, Loukas-Karlsson and Bromwich JJ
Decision:
Appeal allowed.
Appellant resentenced to a total period of 5 years and 5 months’ imprisonment with a non-parole period of 3 years.
Catchwords:
APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – Where the appellant was sentenced for two sets of offences – Degree of concurrency – Whether the sentencing judge failed to properly consider totality – Appellant resentenced
On 25 May 2018, the sentencing judge sentenced the offender for 10 offences to an effective sentence of six years and seven months’ imprisonment with a non-parole period of four years (60.8%): R v Dawson [2018] ACTSC 238 (R v Dawson). The offences related to two days: 10 December 2017 and 14 December 2017.
The Appellant appealed on the ground that the aggregate sentence and related non-parole period were manifestly excessive.
The individual sentences that were imposed were as follows:
Offences on 10 December 2017
1) CC18/2078 – burglary – 28 months’ imprisonment discounted from 37 months, from 14 December 2017 to 13 April 2020;
2) CC18/2093 – theft – 24 months’ imprisonment discounted from 32 months, from 14 June 2019 to 13 June 2021;
3) CC18/2080 – take motor vehicle – 6 months’ imprisonment discounted from 8 months, from 14 March 2021 to 13 September 2021;
Offences on 14 December 2017
4) CC17/13721 – burglary – 29 months’ imprisonment discounted from 36 months, from 14 June 2021 to 13 November 2023;
5) CC17/13722 – theft – 14 months’ imprisonment discounted from 17 months, from 14 March 2023 to 13 May 2024;
6) CC17/13723 – theft – 9 months’ imprisonment discounted from 11 months, from 14 October 2023 to 13 July 2024;
7) CC17/13725 – escape custody – 1 month’s imprisonment, from 14 June 2024 to 13 July 2024;
[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
AGLC
Dawson v The Queen [2019] ACTCA 9
Case
[2019] ACTCA 9
Decision Date
CaseChat Overview and Summary
Dawson appealed against a sentence imposed by a sentencing judge in the District Court of New South Wales. The appellant had been convicted of two sets of offences and sentenced to a total term of imprisonment. The appeal concerned the degree of concurrency between the sentences for these two sets of offences and whether the sentencing judge had adequately considered the totality of the sentence.
The primary legal issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive, specifically in relation to the consideration of the totality principle. This involved an assessment of whether the judge had properly accounted for the combined impact of the sentences for the separate sets of offences when determining the overall length of imprisonment and the non-parole period.
The Court of Appeal found that the sentencing judge had failed to properly consider the totality of the sentence. The court applied the totality principle, which requires a sentencing judge to consider the overall impact of multiple sentences imposed on an offender. By failing to give sufficient weight to this principle, the original sentence was deemed to be manifestly excessive. Consequently, the appeal was allowed, and the appellant was resentenced to a total period of 5 years and 5 months’ imprisonment, with a non-parole period of 3 years.
Orders
Orders of the court
Appeal allowed.
Appellant resentenced to a total period of 5 years and 5 months’ imprisonment with a non-parole period of 3 years.