Dickensen v The Queen - [1990] HCATrans 98

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Melbourne No M7 of 1990

B e t w e e n -

BRIAN JOHN DICKENSEN

Applicant

and
THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J
TOOHEY J

Dickens en
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 10 MAY 1990, AT 2.03 PM
Copyright in the High Court of Australia

C2Tl/l/PLC 1 10/5/90

MR M.E.J. BLACK, QC: May it please the Court, I appear with
my learned friend, MR P.A. DUNN, for the applicant.
(instructed by Balmer & Associates)

MR L.W. FLANAGAN: May it please the Court, I appear with my
learned friend, MR G.J.C. SILBERT, for the respondent.
(instructed by J.M. Buckley, Solicitor to the Directer
of Public Prosecutions)

MR BLACK: May I hand to the Court an outline of our argument

but before doing so might I indicate this to the Court: the special leave points that we contend
exist in these cases exist, in a sense, at two

levels. There is a very simple point as to whether
a matter was properly determined below and I will

take the Court to authority on that. There arc
points of general application and importance as to
what sense in methodology should be used where
multiple offences have been committed and the

principle of totality is involved. There is a
third and I would have to say broader point
without demeaning the second one, which involves
the whole question of sentencing; whether one
should have a one-stage or two-stage approach in

any criminal sentencing process. That argument
would only arise technically in reply in certain
circumstances and my friend will raise it to
iustify what the learned sentencing judge did.

I have prepared an outline of argument in relation to that point. It is, in view of the
limited time available to the Court, in more
detail than the normal outline. It, in fact,
docs not exceed three pages but it is basically
the synthesis of the argument and if the Court
finds it convenient, I can hand that now to the
Court or not.

BRENNAN J: I think it would be just as effective if you were
to hand it now, Mr Black.

MR BLACK: May it please the Court. I did not want to be

presumptious because it only arises - - -

BRENNAN J: No, unless Mr Flanagan has some observations to
make about that.

MR FLANAGAN: No, I have no observations, Your Honour.

MR BLACK: In that event, might I hand to the Court copies of
the outline of the primary argument together with
what we have termed "Outline of Applicant's Argument
on the One-Stage Approach Issue".

C2Tl/2/SH 2 10/5/90
Dickenscn
MR BLACK (continuing) : I am sorry, the Court has the complete set,
Your Honour, and as well the Court will have
a chart showing the way in which the various
sentences fell which it is hoped will save
some time.

BRENNAN…

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 Dickensen v The Queen

Details

AGLC: Dickensen v The Queen [1990] HCATrans 98
Case: [1990] HCATrans 98
Decision Date

CaseChat Overview and Summary

The applicant, Dickensen, sought special leave to appeal to the High Court of Australia against sentences imposed by the County Court for multiple offences, including three armed robberies. The appeal to the Court of Criminal Appeal had also contested the sentencing methodology employed by the primary judge.

The legal issues before the High Court concerned the appropriate methodology for sentencing when multiple offences have been committed, particularly in relation to the principle of totality. A broader issue raised was whether a one-stage or two-stage approach should be adopted in the criminal sentencing process.

The applicant contended that the sentencing judge employed a two-stage approach. In the first stage, the judge determined a sentence proportionate to the gravity of each offence, disregarding personal factors of the offender. This established a ceiling for each offence. In the second stage, personal circumstances were considered to reduce the sentence from this ceiling, ultimately fixing the total sentence for all offences. The applicant argued that this methodology was flawed.

Orders