Dooley v The Queen - [2003] NTCCA 6

Dooley v The Queen [2003] NTCCA 6
PARTIES:MATTHEW GEORGE DOOLEY
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 26 of 2001 (20014925)
DELIVERED:  22 July 2003
HEARING DATE:  19 May 2003
JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:D. Grace QC
Respondent:  W.J. Karczewski QC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0318
Number of pages:  19

ril0318
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dooley v The Queen [2003] NTCCA 6
No. CA 26 of 2001 (20014925)

BETWEEN:
MATTHEW GEORGE DOOLEY

Appellant
AND:
THE QUEEN

Respondent

CORAM: ANGEL, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 22 July 2003)
ANGEL J:

I would refuse the application to adduce fresh evidence and dismiss the appeal for the reasons given by Riley J.
MILDREN J:
I would also refuse the application to adduce fresh evidence and dismiss the appeal for the reasons given by Riley J.
RILEY J:

The appellant pleaded guilty to one count of committing a dangerous act and thereby causing the death of Peter Searle. It was an aggravating feature of the offence that, at the time of the offending, the appellant was under the influence of alcohol. The maximum penalty for the offence is imprisonment for 14 years. On 22 November 2001 he was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years.

The appellant appeals against the sentence and was granted leave to appeal by a Judge of this Court on 18 January 2002.
There are three grounds of appeal, namely: that the sentence was manifestly excessive; that it was manifestly disparate to the general pattern of sentences; and, finally, that by reason of new or fresh evidence which has arisen since the imposition of the sentence, the sentence imposed on the appellant is manifestly excessive. The appellant sought leave to adduce further evidence in support of the final ground.
The circumstances of the offending were disturbing. The learned sentencing judge described those circumstances as placing the offending at the highest end of the range of seriousness for offences of its kind.
The deceased and the appellant knew each other. Some 3 to 4 weeks before the death of the deceased, his young daughters informed the appellant that the deceased had exposed himself to them. The appellant decided that informing the police would not achieve anything and he determined to deal with the issue himself. It took him some time to locate the address of the deceased who lived on a rural block south of Darwin. On 4 September 2000 the appellant, with two companions, Mark Anthony Milianos and another, whom the appellant declined to name at that time but who subsequently has been identified as David Anthony Rice, spent the afternoon drinking beer. Together they decided to drive…

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 Dooley v The Queen

Details

AGLC: Dooley v The Queen [2003] NTCCA 6
Case: [2003] NTCCA 6
Decision Date: 22 July 2003

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Dooley, by a sentencing judge. Dooley appealed against the sentence, arguing it was manifestly disparate to sentences imposed for similar offences and sought to introduce fresh evidence to support this claim. The respondent opposed the application for fresh evidence.

The Court was required to determine two principal issues: first, whether the sentence imposed was manifestly disparate to the general pattern of sentences for offences against section 154 of the Criminal Code; and second, whether fresh evidence, concerning the appellant's subsequent identification of another individual involved in the offending and his cooperation with authorities, should be admitted and, if so, whether it demonstrated that the sentence was manifestly excessive.

Regarding the disparity of sentence, the Court noted that section 154 of the Criminal Code covers a wide range of conduct and that comparative cases are rarely truly comparable. The Court found that the cases presented by the appellant were not as serious as his own and did not involve vigilante vengeance, thus failing to demonstrate manifest disparity. On the issue of fresh evidence, the Court considered the appellant's post-sentencing cooperation with police, which led to the identification and prosecution of another individual, Mr Rice, who was convicted of a lesser offence. The appellant argued this assistance shed new light on his remorse and prospects for rehabilitation.

The Court ultimately dismissed the appeal, finding that the appellant had not demonstrated that the sentence imposed was manifestly disparate. The Court also implicitly rejected the application for fresh evidence by not ordering a resentencing based on it, as the appellant had not established the grounds for such an intervention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant also complains that the sentence imposed by the learned sentencing judge was manifestly disparate to the general pattern of sentences imposed for the same offence. The appellant provided a schedule of what were said to be comparative sentences in support of this argument. This Court has previously observed that an offence against s 154 of the Criminal Code covers a wide range of conduct and, like manslaughter, allows no statistical range. Comparative cases are of little assistance because there are rarely similar cases which are truly comparative: R v Bloomfield (1999) NTCCA 137 at para 19. The cases referred to by the appellant are not truly comparative. None is as serious as this matter and none involves vigilante vengeance. The appellant has not demonstrated that the sentence imposed was manifestly disparate to the general pattern for sentences imposed in relation to s 154(4) of the Criminal Code.Fresh evidence The appellant made application for the Court to receive fresh evidence, the consideration of which, he submits, would lead to a conclusion that the sentence imposed was manifestly excessive. The respondent opposed the application. To determine the matter it is necessary to identify the evidence the appellant seeks to introduce. As has been observed, at the time of sentencing the appellant declined to identify Mr Rice as a person present at the time of offending. The appellant maintained that he was the only person to assault the deceased. The learned sentencing judge described the appellant’s failure to identify Mr Rice as “perverse” and made the observations set out at paragraph 13 above. Sentencing of the appellant took place on 22 November 2001. On 12 July 2002 the appellant participated in a tape-recorded conversation with police officers and provided the identity of Mr Rice. He also described the role that Mr Rice had played in the assault. On 24 July 2002 he provided a signed statutory declaration to police containing further inculpatory information in relation to Mr Rice. Mr Rice was subsequently charged and brought to trial. The charges he faced were manslaughter, dangerous act, causing bodily harm with intention of causing grievous harm and committing a dangerous act whilst under the influence of alcohol. He pleaded not guilty to all charges and, after a trial before a jury, was convicted of committing a dangerous act whilst under the influence of alcohol. He was sentenced to 2 years imprisonment, 18 months of which was suspended for 2 years. The appellant co-operated with the authorities in the proceedings. He testified on behalf of the prosecution at a voir dire hearing and a Basha inquiry in respect of the charges. He was a prosecution witness at the trial. It was the submission of the appellant that the assistance he provided shed new light upon matters considered by the sentencing judge in mitigation of penalty, namely that his prospects for rehabilitation were limited as were his feelings of remorse and his acceptance of moral culpability.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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