De Rooy v The Queen - [2002] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DE ROOY -v- THE QUEEN [2002] WASCA 140

CORAM: MALCOLM CJ
WALLWORK J
TEMPLEMAN J

HEARD: 12 FEBRUARY 2002

DELIVERED : 23 MAY 2002

FILE NO/S: CCA 97 of 2001

BETWEEN: SHANE WILLIAM DE ROOY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Application for leave to appeal against sentence of the District Court - Totality principle - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 689(3)

Sentencing Act 1995 (WA), s 32

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant: Mr P J M Sullivan
Respondent: Mr D Dempster

Solicitors:

Applicant: Paul Sullivan
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Lenton v The Queen [2001] WASCA 392
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Case(s) also cited:

Bobletec v The Queen [2001] WASCA 222
Jarvis v The Queen (1998) 20 WAR 201
R v Ruich [2000] WASCA 84
Troy v The Queen, unreported; CCA SCt of WA; Library No 980068; 13 February 1998

MALCOLM CJ: In my opinion the application for leave to appeal against sentence should be refused for the reasons to be published by Templeman J. I also agree, however, with Templeman J that the order made by his Honour Judge Viol disqualifying the applicant from holding a driver's licence for a period of 12 months should be corrected as such an order had previously been made by his Honour Judge Healy on 21 August 2000. There was no basis for any further order.
WALLWORK J: I agree with the reasons for judgment and the conclusions of Templeman J.
There is nothing I wish to add.
TEMPLEMAN J: On 27 June 2001 the applicant, Shane William De Rooy, was sentenced by Judge Viol in the District Court to a term of five years imprisonment for numerous offences to which he had previously pleaded guilty and in respect of which, on 21 August 2000 Judge Healy had made a two year intensive supervision order ("the ISO").
The applicant did not comply satisfactorily with the programme requirements of the ISO, which was breached. The applicant pleaded guilty to the breach, without offering any explanation or excuse. It was in those circumstances, that the applicant was re-sentenced by Judge Viol. The applicant now seeks leave to appeal from the sentence of five years imprisonment on the basis that it was so excessive as to manifest error on the part of the learned sentencing Judge.
On 15 June 2000 the applicant pleaded guilty to possessing 0.89 grams of heroin with intent to sell or supply it to another. The applicant also pleaded guilty to a number of offences which he requested the Court to deal with pursuant to s 32 of the Sentencing Act 1995 (WA). The offences were receiving and possessing an unlawful firearm, giving a false name to the…

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 De Rooy v The Queen

Details

AGLC: De Rooy v The Queen [2002] WASCA 140
Case: [2002] WASCA 140
Decision Date: 23 MAY 2002

CaseChat Overview and Summary

In the case of De Rooy v The Queen, the appellant, De Rooy, sought leave to appeal against his sentence imposed by the District Court of Western Australia. The nature of the dispute was centred around the application of the totality principle in sentencing, particularly in relation to the cumulative effect of multiple sentences imposed for different offences. The appeal was heard by the High Court of Australia, which had to determine whether the sentence imposed by the District Court was excessive and whether it complied with the principles of sentencing.

The primary legal issue before the court was whether the sentence imposed by the District Court, which amounted to a cumulative term of imprisonment, was appropriate under the totality principle. The appellant argued that the total sentence was disproportionate to the overall criminality and did not appropriately balance the severity of the individual offences. The court was required to consider whether the District Court had adequately taken into account the principle that the cumulative effect of sentences should not result in a penalty that is disproportionate to the overall criminality of the offender’s conduct.

In its reasoning, the court acknowledged the importance of the totality principle in ensuring that the cumulative effect of multiple sentences does not result in excessive punishment. The court examined the individual sentences imposed for each offence and the reasoning provided by the District Court for the cumulative sentence. The High Court concluded that the District Court had appropriately considered the totality principle but found that the sentence imposed was still excessive, given the overall circumstances. The court granted leave to appeal on the basis that the sentence was not aligned with the principles of proportionality and just punishment.

Orders