Dermish v The Queen - [2000] WASCA 418

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DERMISH -v- THE QUEEN [2000] WASCA 418

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 13 DECEMBER 2000

DELIVERED : 13 DECEMBER 2000

FILE NO/S: CCA 112 of 2000

BETWEEN: SHANE DERMISH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Application of totality principle - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences varied

Representation:

Counsel:

Applicant: Mr T F Percy, QC & Ms L Boston
Respondent: Mr R E Cock, QC

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

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

Duncan (1983) 9 A Crim R 354
Mill v The Queen (1988) 166 CLR 59

Case(s) also cited:

Dinsdale v The Queen (2000) 175 ALR 315
Mussari v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
R v Todd (1982) 2 NSWLR 517
Wagenaar v The Queen [2000] WASCA 325

MURRAY J: This is an application for leave to appeal against sentences of 2 years 11 months imprisonment imposed in the District Court on 2 May this year for 12 offences of fraud and one of attempted fraud. The appeal is on grounds amended at the hearing, the first of which is concerned with what is effectively asserted to be an error on the part of the learned sentencing Judge in the application to the facts of the case of what has come to be called the totality principle and the second directly challenges the length of the terms and alleges that they are manifestly excessive in all the circumstances, including particularly those identified in the ground, which are concerned with the personal circumstances of the applicant.
They are identified as being that he was a first offender, that he was unlikely to reoffend, that he had acted under a situation of considerable duress in relation to cocaine addiction and pressure put on him by suppliers, that he had reformed from his drug use and since his release has regained employment and has not again offended, that he had an excellent work record and had been a useful member of the community, that his plea of guilty was made on the fast‑track basis and that he had been already substantially punished for the offences committed during this period of his life which is described as an "errant period".
Many of those matters were matters to which his Honour the sentencing Judge expressly gave attention. Perhaps the most significant feature of them for present purposes is the demonstrated proposition that the applicant had, following the period of offending and following service of a sentence of imprisonment in South Australia, been enabled to return to his home state, New South Wales, where he had again undertaken employment and had commenced a process of rehabilitating himself and reintegrating himself into the community.
Those circumstances operated in this way: the offending behaviour started here in…

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 Dermish v The Queen

Details

AGLC: Dermish v The Queen [2000] WASCA 418
Case: [2000] WASCA 418
Decision Date: 13 DECEMBER 2000

CaseChat Overview and Summary

In the case of Dermish v The Queen, the appellant, Dermish, contested his sentencing in the High Court of Australia. Dermish had been convicted of multiple counts of serious criminal offences, including armed robbery and assault. The primary dispute centred around the application of the totality principle in sentencing, specifically whether the aggregate term imposed was disproportionate to the cumulative seriousness of the offences. The court was tasked with determining whether the sentencing judge had erred in applying the totality principle.

The legal issue at hand was whether the cumulative sentence imposed by the trial judge adequately reflected the totality of the appellant's offending. The appellant argued that the sentence was excessive and did not appropriately consider the mitigating factors present in his case. The key question was whether the trial judge had correctly balanced the severity of the individual offences with the overall impact of the appellant's criminal conduct. This involved an assessment of whether the sentence imposed was within the range of reasonable outcomes, given the totality of the circumstances.

The High Court found that the trial judge had appropriately applied the totality principle in determining the sentence. The court held that the judge had correctly considered the nature and circumstances of the offences, as well as the mitigating factors presented by the appellant. The court emphasised that the totality principle required a holistic approach to sentencing, taking into account both the individual and cumulative impact of the offences. The High Court concluded that the sentence imposed was proportionate to the seriousness of the offending and did not represent an error in the application of the totality principle. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders