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Dawson v The Queen

Dawson v The Queen

Case [2015] VSCA 166 25 June 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0050

ANDREW DAWSON	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0060

DAMIEN STEWART	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2015
DATE OF JUDGMENT:	25 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 166
JUDGMENT APPEALED FROM:	DPP v Dawson (Unreported, County Court of Victoria, Judge Maidment, 23 January 2015)

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CRIMINAL LAW – Sentence – Armed robbery – Sentence of 22 months’ imprisonment together with CCO of 24 months – Whether term of imprisonment in addition to CCO manifestly excessive – Whether tension between Sentencing Act 1991 s 5(4C) and current sentencing practices – Proof of offence derived from admissions – Failure to apply Doran discount – Re-sentencing by reducing individual sentence and making orders for cumulation – Total effective sentence unaltered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Dawson	Ms F H Todd	James Dowsley & Associates
For the Applicant, Stewart	Ms N D Kaddeche	Ms Melinda Walker
For the Respondent	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

BEACH JA:

Introduction

On 16 October 2014, Andrew Dawson pleaded guilty in the County Court to one charge of armed robbery and one charge of driving an unregistered motor vehicle. On the same day, Damien Stewart (a co-offender in respect of the armed robbery) pleaded guilty to one charge of armed robbery, one charge of trafficking in a drug of dependence (methylamphetamine), two charges of possessing a drug of dependence (methylamphetamine and cannabis), two charges of possessing a prohibited weapon, one charge of possessing a controlled weapon and one charge of dealing with property suspected of being the proceeds of crime. Following plea hearings conducted on 16 October, 27 November, 12 December 2014[1] and 22 January 2015, Dawson and Stewart were sentenced on 23 January 2015 as follows:
[1]On 12 December 2014, both matters were adjourned for sentencing on 19 December 2014. However, on 19 December 2014, both matters were adjourned to 22 January 2015 so as to give the parties an opportunity to make submissions about the effect of the guideline judgment in Boulton v The Queen [2014] VSCA 342 (‘Boulton’) that was then anticipated would be delivered on 22 December 2014. Boulton was delivered as anticipated on 22 December 2014, and the parties made submissions about its effect on 22 January 2015, before sentences were pronounced by the judge on 23 January 2015.

Andrew Dawson

Charge on Indictment Offence Maximum Sentence Cumulation

2 Armed robbery [Crimes Act1958 s 75A(1)] 25 years
[Crimes Act1958 s 75A(2)] 22 months and 2 year CCO to commence upon completion of imprisonment Base

Summary Charge 3 Driving an unregistered motor vehicle [Road Safety Act1986 s 7(1)(a)] 25 penalty units [Road Safety Act1986 s 7(3)(a)(i)] Convicted and discharged N/A

Total Effective Sentence: 22 months and 2 year CCO to commence upon completion of imprisonment

Non-Parole…

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 Dawson v The Queen

Details

AGLC: Dawson v The Queen [2015] VSCA 166
Case: [2015] VSCA 166
Decision Date: 25 June 2015

CaseChat Overview and Summary

The case of Dawson v The Queen involved the defendant, Dawson, who was convicted of armed robbery and subsequently sentenced to 22 months' imprisonment and a 24-month community corrections order (CCO). The dispute centred on whether the term of imprisonment in addition to the CCO was manifestly excessive and if there was a conflict between the Sentencing Act 1991 section 5(4C) and contemporary sentencing practices. The proof of the offence was based on Dawson's admissions, and the court was required to determine whether the trial judge had erred by not applying a Doran discount. The court re-sentenced Dawson by reducing the individual sentence and making orders for cumulation, ensuring the total effective sentence remained unchanged.

The primary legal issues revolved around the appropriateness of the sentence given and the application of statutory provisions regarding sentencing. Specifically, the court examined whether the sentence was manifestly excessive and whether the trial judge's failure to apply the Doran discount was a material error. Additionally, the court considered the tension between the statutory requirements under section 5(4C) of the Sentencing Act 1991 and the prevailing sentencing practices in similar cases.

The court found that the term of imprisonment was indeed excessive when considered alongside the 24-month CCO. The court highlighted that the trial judge had not applied the Doran discount, which should have been considered given Dawson's admissions. The court re-sentenced Dawson, reducing the imprisonment term and ensuring that the total effective sentence remained consistent with the original. The court concluded that the tension between statutory requirements and current practices warranted a re-assessment of the sentence, but the overall custodial period should remain the same.

The court's final orders involved reducing the term of imprisonment from 22 months to a more appropriate length while maintaining the 24-month CCO. The cumulative effect of the sentence was left unchanged, ensuring that the total punishment remained consistent with the original sentence. The court emphasised the importance of balancing statutory requirements with contemporary sentencing practices, ultimately achieving a fair and proportionate outcome for the defendant.

Orders