Dennis William Newall v The Queen - [2015] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0054

DENNIS WILLIAM NEWALL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2015
DATE OF JUDGMENT:	16 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 250
JUDGMENT APPEALED FROM:	DPP v Newall (Unreported, County Court of Victoria, Judge Gucciardo, 20 February 2015)

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CRIMINAL LAW – Appeal – Totality – Appellant sentenced in 2002 for kidnapping and rape of one victim – Sentence completed – Appellant sentenced in 2015 for kidnapping and rape of two other victims which were part of a series – Sentenced to 13 years’ imprisonment with non-parole period of 11 years and 6 months – Appeal allowed – Appellant resentenced to a total effective sentence of 11 years with a non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST J
BEACH JA:

Introduction

Pursuant to leave granted by Priest JA ‘on the papers’ on 23 June 2015, the appellant appeals against a total effective sentence of 13 years’ imprisonment, with a non-parole period of 11 years and six months’ imprisonment, imposed upon him for kidnaping and rape.

For the reasons that follow, we would allow the appeal.

Plea, sentence and grounds of appeal

On 29 January 2015, the appellant pleaded guilty in the County Court to the kidnapping[1] and rape[2] of ‘SP’ (charges 1 and 2), and to the kidnapping and rape of ‘SB’ (charges 3 and 4), in a period between November and December 2001.
[1]Common law. Pursuant to s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.

The judge sentenced him on 20 February 2015 to be imprisoned for 13 years, with a non-parole period of 11 years and six months, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Kidnapping – Complainant ‘SP’ (between 9 — 30 November 2001)

8 years

6 months

2

Rape – Complainant ‘SP’ (between 9 — 30 November 2001)

10 years

2 years[3]

3

Kidnapping — Complainant ‘SB’ (6 December 2001)

8 years

6 months

4

Rape — Complainant ‘SB’ (6 December 2001)

10 years

Base

Total effective sentence

13 years’ imprisonment

Non-parole period

11 years’ and six months’ imprisonment

Pre-sentence detention

Nil

Section 6AAA declaration

14 years’ imprisonment, with non-parole period of 12 years and 6 months.

Other Orders

· Sentenced under Part 2A of the Sentencing Act 1991 as a serious sexual offender in respect of charges 2 and 4.

· Lifetime reporting under s 34 of the Sex Offenders Registration Act 2004.

[3]The appellant was sentenced as a serious sexual offender on charge 2, but the judge ordered cumulation of two years of the sentence on charge 4, rather than concurrency. Strictly speaking, to accord with s…

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: [2015] VSCA 250
Decision Date: 16 September 2015

CaseChat Overview and Summary

In the matter of Dennis William Newall versus The Queen, the High Court of Australia heard an appeal against sentence. The appellant, Dennis William Newall, had been convicted of various criminal offences, including kidnapping and rape, with the crimes committed against different victims over a period of time. The court was tasked with determining whether the sentence imposed by the lower court was appropriate and whether it complied with the principle of totality.

The primary legal issue before the court was whether the sentence imposed by the lower court was excessive and did not reflect the principle of totality. This principle requires that when a defendant is sentenced for multiple offences, the cumulative sentence should not be excessive when taking into account the sentences for the individual offences. The appellant argued that the sentence imposed by the lower court was manifestly excessive and did not appropriately reflect the principle of totality. The court was required to consider whether the sentence was unjust and whether it should be altered.

The court found that the sentence imposed by the lower court was indeed excessive and did not appropriately reflect the principle of totality. The court held that the cumulative sentence imposed on the appellant was manifestly excessive and did not take into account the sentences for the individual offences. The court considered that the appropriate sentence should reflect the principle of totality and should not be manifestly excessive. As a result, the court allowed the appeal, and the appellant was resentenced to a total effective sentence of 11 years with a non-parole period of 9 years. This decision was made to ensure that the principle of totality was appropriately reflected in the sentence imposed.

Orders