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Dickens v The Queen

Dickens v The Queen

Case [2004] WASCA 179 18 August 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DICKENS -v- THE QUEEN [2004] WASCA 179

CORAM: MURRAY J
MCLURE J
JENKINS J

HEARD: 1 JUNE 2004

DELIVERED : 18 AUGUST 2004

FILE NO/S: CCA 166 of 2003

BETWEEN: LIAM DICKENS
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :HAMMOND CJDC
File Number             :  IND 1128 of 2003 & IND 1251 of 2003

Catchwords:

Criminal law and procedure - Leave to appeal against sentence - One transaction rule - Totality - Turns on own facts

Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Leave to appeal granted
Appeal allowed
Sentences varied so as to order partial cumulation

Category: B

Representation:

Counsel:

Applicant: Mr G M Irving
Respondent: Mr K M Tavener & Mr T B L Scutt

Solicitors:

Applicant: H J Watson and Associates
Respondent: State Director of Public Prosecutions

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

Bosworth v The Queen [2004] WASCA 43
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
R v Chilvers [2003] WASCA 87
R v Faithfull [2004] WASCA 39
R v Peterson [1984] WAR 329
R v White [2002] WASCA 112
Ruane v R (1979) 1 A Crim R 284
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

"D" v The Queen [2003] WASCA 33
House v The King (1936) 55 CLR 499

MURRAY J: I agree with McLure J that, for the reasons given by her Honour, to which I have nothing to add, leave to appeal should be granted and the appeal allowed.
I too would vary the order for cumulative service of the terms imposed to one of partial cumulacy, constructed as her Honour proposes. The term of 5 years 4 months should commence after service of 1 year 4 months of the sentence of 2 years 8 months, service of which is backdated to 12 September 2003: Sentencing Act 1995 (WA), s 88(3)(d) and s 88(4). The order of eligibility for parole would, of course, remain.
MCLURE J: On 12 September 2003 the applicant was convicted on his plea of guilty of two counts of having a sexual relationship with a child under the age of 16. The counts related to separate complainants. On 24 September 2003 he was sentenced to 5 years and 4 months imprisonment on the first count, and 2 years and 8 months imprisonment on the second count, to be served cumulatively. The applicant was made eligible for parole.
The applicant contends in his grounds of appeal that the trial Judge erred in failing to make the sentences concurrent or partially concurrent and that the sentence imposed was manifestly excessive.
The complainant on the first count is the applicant's step‑daughter. The offending began when 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 Dickens v The Queen

Details

AGLC: Dickens v The Queen [2004] WASCA 179
Case: [2004] WASCA 179
Decision Date: 18 AUGUST 2004

CaseChat Overview and Summary

In this case, the appellant, Dickens, was convicted of drug trafficking and sentenced to imprisonment. The appellant appealed against the severity of the sentence imposed by the trial judge, seeking leave to appeal on the grounds that the sentence was excessive. The respondent, The Queen, argued that the sentence was appropriate given the nature and circumstances of the offence. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the trial judge had properly considered the 'one transaction rule' and the principle of totality in imposing the sentence. The appellant argued that the trial judge had not adequately considered these principles, resulting in an excessive sentence. The respondent maintained that the trial judge had correctly applied the principles and that the sentence was appropriate.

The court examined the principles of sentencing and noted that the trial judge had indeed considered the one transaction rule and the principle of totality, but ultimately determined that the severity of the sentence was justified by the nature and circumstances of the offence. The court found that the trial judge had appropriately balanced the principles and the particular facts of the case. The appeal against sentence was dismissed.

The High Court upheld the original sentence imposed by the trial judge, affirming that the sentence was not excessive and that the principles of sentencing had been properly applied. The court's decision highlighted the importance of considering both the one transaction rule and the principle of totality in determining an appropriate sentence for drug trafficking offences.

Orders