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Dosen v The Queen

Dosen v The Queen

Case [2012] VSCA 307 14 December 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0128

MARK ANTHONY DOSEN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF JUDGMENT	14 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 307
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Dosen (Unreported, County Court of Victoria, Judge O’Neill, 9 May 2012)

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CRIMINAL LAW – Appeal – Sentence – Arson, aggravated burglary, theft, criminal damage, resisting arrest – Total effective sentence 4 years and 6 months, non‑parole period 3 years – Whether judge intended to fix ‘shorter than usual’ non‑parole period – Whether sentence gave effect to judge’s intention – Whether non‑parole period reasonably open – Whether sentence of 6m (3m cumulated) for criminal damage manifestly excessive – Whether sufficient discount for voluntary disclosure of aggravated burglary – Reckless intoxication – Foreknowledge of effect of alcohol and drugs – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C J Pearson	Cameron Marshall & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Introduction

The applicant pleaded guilty to a series of charges arising out of two separate episodes of offending. The circumstances of the offending were set out in the summary of prosecution opening, which was adopted by the trial judge.[1] Briefly they were as follows:
[1]DPP v Dosen (Unreported, County Court of Victoria, Judge O’Neill, 9 May 2012) [2], (‘Reasons’).

·On 17 August 2011, the applicant burnt down the property he owned jointly with his ex-partner. He had made a number of previous attempts. He was arrested shortly afterwards and made full disclosures to the police. (Charge 1 — arson.)
·The applicant was bailed, and failed to answer bail on 24 August 2012. (Charge 2 — failure to answer bail.)
·On 1 November 2012, while still on bail, the applicant and a co‑offender went to the house of Mr H and demanded drugs and money, using an imitation hand gun. The applicant forced his way into the house, where he stole money, personal papers and cannabis. (Charges 1 and 2 on second indictment — aggravated burglary and theft.)
·Later on the same night, the applicant went to the home of Mr M, entered the house and stole money and personal belongings. (Charge 3 on second indictment — theft.)
·Early in the morning of 2 November 2012 (continuing from the night before), the applicant went to a McDonald’s restaurant. He became angry and abusive when his order was not made quickly. He kicked a bin. As he was leaving he kicked a glass door, causing the lower panel to smash. The cost to replace the glass was $391. (Charge 4 on second indictment — criminal damage.)
·The applicant returned to the restaurant about an hour later and had a verbal altercation with staff. Police arrived shortly afterwards. When the applicant was abusive towards police, they sprayed OC spray at him. Five…

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 Dosen v The Queen

Details

AGLC: Dosen v The Queen [2012] VSCA 307
Case: [2012] VSCA 307
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of Dosen v The Queen, the appellant was convicted of arson, aggravated burglary, theft, criminal damage, and resisting arrest. The respondent, the Crown, appealed against the sentence imposed on the appellant, which was a total effective sentence of four years and six months, with a non-parole period of three years. The appellant argued that the sentence did not give effect to the judge's intention of imposing a shorter than usual non-parole period. The Crown argued that the sentence was appropriate and that the appellant had not demonstrated that the non-parole period was not reasonably open.

The court considered whether the judge intended to fix a shorter than usual non-parole period and whether the sentence given effect to the judge's intention. The court also considered whether the non-parole period was reasonably open and whether the sentence of six months (three months cumulated) for criminal damage was manifestly excessive. Additionally, the court examined whether there was a sufficient discount for the voluntary disclosure of the aggravated burglary and whether the appellant's reckless intoxication and foreknowledge of the effect of alcohol and drugs were taken into account.

The court found that the judge intended to fix a shorter than usual non-parole period, but the sentence given effect to the judge's intention. The court also found that the non-parole period was reasonably open and that the sentence for criminal damage was not manifestly excessive. The court further found that there was a sufficient discount for the voluntary disclosure of the aggravated burglary and that the appellant's reckless intoxication and foreknowledge of the effect of alcohol and drugs were taken into account. Consequently, the appeal was dismissed.

The court made no orders as the appeal was dismissed.

Orders