Dougan v The Queen

Case [2006] NSWCCA 34

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Dougan v Regina [2006]  NSWCCA 34

FILE NUMBER(S):
2005/1864

HEARING DATE(S):               03/02/2006

DECISION DATE:     06/03/2006

PARTIES:
Dee Dougan (previously Robert Wilkie Dougan) - Applicant
Crown - Respondent

JUDGMENT OF:       Giles JA Grove J Hoeben J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/41/0178

LOWER COURT JUDICIAL OFFICER:     Maguire DCJ

COUNSEL:
H Dhanji - Applicant
W Dawe SC - Respondent Crown

SOLICITORS:
S O'Connor, Solicitor for Legal Aid - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Sentence appeal - plea of guilty and assistance to authorities - assault with intent to rob whilst armed with a dangerous weapon - whether matters properly taken into account by sentencing judge under s21A of Crimes (Sentencing Procedure) Act 1999 or whether matters were elements of the offence - use to be made of offender's criminal record - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted.  Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1864

GILES JA
GROVE J
HOEBEN J

Monday, 6 March 2006

Dee DOUGAN (previously Robert Wilkie DOUGAN) v REGINA

JUDGMENT

  1. GILES JA:  I agree with Hoeben J.

  2. GROVE J:  I agree with Hoeben J.

  3. HOEBEN J:

    Offences and sentence
    On 31 January 2005 the applicant pleaded guilty on indictment to one count of assault with intent to rob whilst armed with a dangerous weapon contrary to s97(2) Crimes Act 1900 – maximum penalty 25 years. The offence was committed on 3 November 2003.

  4. On 15 December, 2004 the applicant pleaded guilty in the Local Court to an offence of threatening a witness contrary to s322 of the Crimes Act 1900 – maximum penalty imprisonment for 10 years. This offence related to a gesture made by the applicant towards a witness called in the committal proceedings for the s97(2) offence. The offence was committed on 30 August, 2004.

  5. The applicant, who had been in custody since 21 January 2004, was sentenced by Maguire DCJ on 25 February 2005 as follows:

    Threaten witness contrary to s322 – a term of fulltime imprisonment with a non-parole period of 3 years and a balance of term of 1 year to commence on 21 January 2004.

    Assault with intent to rob whilst armed with a dangerous weapon contrary to s97(2) – a term of fulltime imprisonment with a non-parole period of 6 years and a balance of term of 2 years to commence on 21 January 2005.

  6. The total effective sentence resulting from the partial accumulation of the sentences was a non-parole period of 7 years with a balance of term of 2 years.

    Background to offences

  7. The following statement of facts was admitted into evidence without objection:

    “During 2002 John Beattie and his girlfriend Anne-Marie Hatch moved into a unit at Manning Street, Kiama.  Beattie and Dougan were friends who had first met each other in gaol.  On his release from gaol in Western…

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AGLC
Dougan v The Queen [2006] NSWCCA 34
Case
[2006] NSWCCA 34
Decision Date

CaseChat Overview and Summary

Dougan v The Queen concerned an appeal against sentence imposed by the District Court of New South Wales. The applicant, Dougan, was found guilty of attempting to rob a service station whilst armed with a dangerous weapon. The sentence imposed was a non-parole period of 7 years with a balance of term of 2 years. Dougan appealed the sentence, arguing that the trial judge failed to properly take into account certain factors in assessing the seriousness of the offence and that the sentence was manifestly excessive.

The legal issues before the court were whether the trial judge properly considered the threatened use of violence and the applicant's criminal history in assessing the seriousness of the offence, and whether the sentence was manifestly excessive. The court found that while the trial judge could have properly taken into account these factors, he did so in an erroneous manner. However, the court concluded that the sentence was not manifestly excessive and did not warrant alteration.

The court's reasoning was that while there was error in the trial judge's approach, it did not result in a sentence that fell outside the applicable discretionary range. The court also noted that the applicant had an appalling criminal history and that the sentence was necessary to deter him and others from committing further offences of a similar kind. The court therefore dismissed the appeal and granted leave to appeal.

In conclusion, the court found that while there was error in the trial judge's approach, it did not result in a sentence that was manifestly excessive. The court dismissed the appeal and granted leave to appeal. The sentence imposed by the trial judge was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The total effective sentence resulting from the partial accumulation of the sentences was a non-parole period of 7 years with a balance of term of 2 years.Background to offences The following statement of facts was admitted into evidence without objection:“During 2002 John Beattie and his girlfriend Anne-Marie Hatch moved into a unit at Manning Street, Kiama. Beattie and Dougan were friends who had first met each other in gaol. On his release from gaol in Western Australia Dougan contacted Beattie who invited him to come over to Kiama. Dougan travelled to Kiama. During this visit Beattie told Dougan of a service station 60 metres from his Kiama flat known as “Addison’s Garage” that he had been watching for 12 months. He stated that a lot of money went through the service station as it was the only one in the area. Beattie inquired if Dougan was interested in taking the money. Dougan and Beattie discussed and planned the robbery of the service station however Dougan subsequently changed his mind and returned to Perth.Approximately one month later at the beginning of November 2003 Dougan flew to Sydney with a female friend, Kylie Wright. Dougan and Wright booked into a cabin at the Shellharbour Caravan Park. Arrangements were made to carry out the robbery in the early morning of 3 November. Dougan and Beattie were to proceed on a stolen motorbike to the garage. Hatch was to wait nearby in a car.At about 6.15 am on 3 November Dougan and Beattie proceeded to the service station on the motorcycle. They waited while the milkman made his delivery. At about 6 am Fred Addison, aged 74, the owner of the garage arrived. He is a proprietor of the service station and had been there for 51 years. At about 6.15 am he heard a motorbike out the front. He observed two people on the bike and a pillion passenger came in. Addison said to that person “Can I help you?” The pillion passenger pulled a gun from his right hip and said “It’s a hold up”.He pointed the gun at the victim’s neck and they walked over to the cash register. He asked for the weekend takings, however the victim replied they were at home. Another motor bike then pulled up and the male ran from the shop and got back on the bike and they rode off in a southerly direction.” It was not clear whether the applicant was the offender who pointed the pistol at Mr Addison or whether he had remained on the motorcycle outside the garage. The applicant was arrested on 21 January 2004. On that occasion he denied any part in the crime. At a later interview on 16 December 2004 the applicant made a number of admissions as to his part in the crime. He claimed to be the rider of the motorcycle and that Beattie was the person who pointed the pistol. In the committal hearing before the Local Court, Kylie Wright a prostitute who had been closely associated with the applicant and who had flown with him to Sydney in November 2003 before the attempted robbery, was called as a witness. In her statement she implicated the applicant in the robbery and identified him as the person who pointed the pistol at Mr Addison. It was quite clear that her potential evidence was an important part of the Crown case against the applicant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that the sentence imposed by his Honour in respect of the s97(2) matter is manifestly excessive. This ground of appeal fails.Conclusion As indicated, I have concluded that there was error in his Honour’s failure to explain how the threatened use of violence should be properly taken into account when assessing the seriousness of the s97(2) offence. His Honour also erred in taking into account the applicant’s criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act 1999. Nevertheless I have concluded that these were matters, which his Honour could and should have properly taken into account but not in the way in which he did. Should there be any alteration to the sentences imposed by his Honour? To reduce the sentences below that passed by his Honour would in my opinion be contrary to s6(3) of the Criminal Appeal Act 1912 in that the sentences thus adjusted would be so lenient as to fall below the applicable discretionary range. That is so for the reasons already referred to when dealing with Ground of Appeal 4 and because of the findings by his Honour of no special circumstances, of a continuing lack of contrition and of poor prospects of rehabilitation. In addition, the matters to which his Honour did erroneously have regard, had they been treated properly by him required sentences within the range actually passed by his Honour. The applicant’s appalling criminal history required condign punishment to deter not only him but others from committing further offences of that kind. The orders which I propose are:(1) Leave to appeal is granted.(2) The appeal is dismissed.**********

Ratio Decidendi

Legal Principle Established

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