Dickman v The Queen [No 2]

Case [2017] VSCA 351

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0284

GLYN DICKMAN Applicant
v
THE QUEEN (NO 2) Respondent

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JUDGES: WHELAN and PRIEST JJA and CROUCHER AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 19 August 2015
DATE OF JUDGMENT: 30 November 2017
MEDIUM NEUTRAL CITATION: [2017] VSCA 351
JUDGMENT APPEALED FROM: DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 21 November 2014 (Sentence)).

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury and threat to kill – Whether sentence manifestly excessive – Parity – Co-offender convicted of recklessly cause serious injury, threat to kill and other offences – Co-offender had relevant criminal history – Appeal allowed – Resentencing – Delay – Fresh evidence – Additional hardship resulting from reinstatement of conviction – R v Wei Tang (2009) 23 VR 332 considered.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr S Doyle QC with
Mr B J Doyle 		Barbaro Thilthorpe Lawyers
For the Crown Ms F L Dalziel Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

  1. On 30 October 2014, following a trial in the County Court, the applicant was convicted of an offence of intentionally causing serious injury and an offence of making a threat to kill.  The offences were committed on 27 September 2009.  On 21 November 2014 the applicant was sentenced to a total effective term of imprisonment of eight years with a non-parole period of five years six months. 

  1. The applicant sought leave to appeal his conviction and sentence.  That application was heard by the Court of Appeal on 19 August 2015.  In a judgment delivered on 23 November 2015[1] the majority determined that leave to appeal against conviction should be granted, that the appeal should be allowed and the conviction quashed, and that there should be a new trial.  The Director of Public Prosecutions (‘DPP’) sought and obtained special leave to appeal to the High Court.  In a judgment of 21 June 2017 the High Court allowed the appeal, set aside the orders of the Court of Appeal and in their place ordered that the appeal against conviction be dismissed, and remitted the proceeding to this Court to determine the applicant’s application for leave to appeal against sentence.[2]

    [1][2015] VSCA 311 (‘Court of Appeal Reasons’).

    [2](2017) 344 ALR 474.

  1. Prior to the hearing before this Court on 19 August 2015 the applicant and the DPP had filed written cases concerning the application for leave to appeal against sentence and oral submissions were heard on 19 August 2015.  Consequent upon the remission of the matter, the parties filed additional written submissions.  The parties have not sought a further hearing. 

  1. It is now necessary to determine the application for leave to appeal against sentence.

Circumstances of the offending

  1. The circumstances of the relevant offending were as follows.[3]

    [3]This summary is drawn from the Sentencing Reasons of Judge Coish in relation to the applicant:  DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 21 November 2014) (‘Judge Coish…

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AGLC
Dickman v The Queen [No 2] [2017] VSCA 351
Case
[2017] VSCA 351
Decision Date

CaseChat Overview and Summary

The appellant, Dickman, appealed against his sentence for intentionally causing serious injury and threatening to kill, following a conviction in the County Court. The Court of Appeal considered whether the sentence was manifestly excessive and if there was a parity issue with a co-offender who had been convicted of similar but lesser offences. The Court also examined new evidence presented by the appellant concerning the impact of his incarceration and release on his life and wellbeing.

The Court had to determine whether the sentence imposed was manifestly excessive and whether there was a parity issue with the co-offender. The Court also considered the admissibility and relevance of new evidence presented by the appellant. The Court had to weigh the circumstances of the crime, the sentence, and the appellant's personal situation, including the hardship of his re-incarceration after being released on bail.

The Court found that the appellant’s ground concerning parity was well-made and that it was necessary to grant leave to appeal, allow the appeal, and sentence the appellant afresh. The Court found that the sentence was manifestly excessive, taking into account the appellant’s personal circumstances and the new evidence presented. The Court emphasised the importance of considering the events that have occurred since the original sentencing, including the appellant's time spent in custody and subsequent release on bail, as it pertained to the fairness and justice of the situation. The Court referenced the case of R v Wei Tang to highlight the importance of considering fresh evidence that could lead to a more just outcome.

The Court allowed the appeal, quashed the sentence, and ordered a fresh sentencing hearing. The Court directed that the appellant be re-sentenced in accordance with the law and the facts as presented, ensuring that the new evidence was considered in the sentencing process. The Court's decision underscored the importance of considering all relevant factors, including the personal impact on the appellant, to ensure a just and fair outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has made good the ground of appeal concerning parity. It is necessary to grant leave to appeal, allow the appeal and sentence the applicant afresh.New evidence In further written submissions delivered following the Court’s invitation made via the Registry on 26 October 2017, the applicant’s counsel sought to rely on new evidence. It is to be noted that the applicant went into custody on 30 October 2014, following his conviction by the jury, and was sentenced on 21 November 2014. He remained in custody until 28 November 2015, when he was released on bail following this Court’s quashing of his convictions on 23 November 2015. The applicant remained at liberty until surrendering himself to the County Court on 26 June 2017 (the High Court having pronounced orders on 21 June 2017). He has been in custody since then. The applicant relied on an affidavit sworn on 24 August 2017. With respect, it contains an account of the applicant’s circumstances which is apparently restrained and objective. It sets out the difficulties encountered by the applicant in twice having to confront the process of entering into and adjusting to imprisonment, and twice having to confront the process of re-entering and re-adjusting to society. This is new evidence in the sense that none of these matters could have been anticipated by the judge when originally passing sentence. Relying on Nguyen,[46] the respondent submitted in writing that the applicant could not bring himself within the proposition that ‘the evidence must demonstrate the true significance of facts in existence at the time of the sentence’. Counsel for the respondent also cited R v Smith,[47] R v Eliasen,[48] R v Rostom,[49] R v WEF,[50] R v Holland,[51] R v McLachlan,[52] R v SH[53] and R v Babic,[54] and submitted ‘that the applicant cannot bring himself within any of the examples [in these cases], but more importantly, cannot bring himself within the confines of the relevant proposition’ set out in Nguyen.[46]R v Nguyen [2006] VSCA 184, [36] (‘Nguyen’).[47](1987) 44 SASR 587.[48](1991) 53 A Crim R 391.[49][1996] 2 VR 97.[50][1998] 2 VR 385.[51](2002) 134 A Crim R 451.[52](2004) 8 VR 403.[53][2006] VSCA 83.[54][1998] 2 VR 79. Notwithstanding the respondent’s submissions, it is, we think, legitimate to take into account the events that have occurred since the applicant’s original conviction in the consideration of the present application. In another context, when speaking of fresh evidence, in McIntee[55] King CJ observed:The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.[55]R v McIntee (1985) 38 SASR 432, 435. It would be to ignore the justice of the situation if we were to ignore what has occurred since the applicant was first sentenced. In Wei Tang,[56] the applicant had been convicted of, and imprisoned for, (then novel) slavery offences. On 29 June 2007, this Court, having upheld her appeal against her conviction, ordered that the convictions be quashed and that there be a retrial. The Director of Public Prosecutions appealed to the High Court, by special leave, from the decision, and on 28 August 2008, the High Court upheld the appeal, set aside the orders made by this Court and, in their place, ordered that Wei Tang’s appeal to this Court against conviction be dismissed. Albeit that the Court upon remittal from the High Court found specific sentencing error, such that the sentencing discretion was re-opened, the Court (Maxwell P, Buchanan and Vincent JJA) observed:[57]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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