Dow v R - [2010] VSCA 274

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0871

SONNY JAMES DOW
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	20 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 274
JUDGMENT APPEALED FROM	R v Dow (Unreported, County Court of Victoria, Judge Gaynor, 13 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Causing serious injury intentionally – Crown concession of error – Concession accepted – Appeal allowed and appellant re-sentenced – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Revill & Papa Lawyers
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Sonny Dow is a 28 year old Aboriginal man who pleaded guilty in the County Court to a count of intentionally causing serious injury.[1] The offence was committed at Campbellfield on 14 February 2009. Dow was sentenced on 13 October 2009 to nine years’ imprisonment. The judge fixed a non-parole period of six years and six months and made ancillary orders.
[1]The maximum penalty for the offence is 20 years’ imprisonment.

Grounds of appeal

Now Dow appeals by leave. He relies upon the following grounds:

1.The learned sentencing judge erred in failing to give sufficient weight to the appellant’s plea of guilty.
2.The learned sentencing judge failed to take into account, or failed to give sufficient weight to, the provocation experienced by the appellant.

3. The head sentence and non-parole period are manifestly excessive.

Circumstances of offending

The judge described the circumstances leading up to and culminating in the offence, and its consequences for the victim, this way:

On 13 February 2009, you, your victim Ian Cooper who is a cousin, and three others Jaika Cooper, Tenille Rose, and Katrina Moburne met in the city to celebrate Sorry Day with other Aboriginal persons in Federation Square. The victim Ian Cooper had spent part of the day drinking with Tenille Rose near Princes Bridge by the Yarra River, returning to the steps of St Paul's Cathedral in Flinders Street and meeting up with other members of your party including yourself. Sometime later the group travelled to Collingwood by tram to meet up with Tenille Rose's sister.
It was alleged by the prosecution that whilst on the tram you saw Katrina Moburne who was your girlfriend at the time touch Mr Cooper's buttocks. You have told your counsel that you did not see this occur but agree that during that day you had a conversation with Ms Moburne where she revealed to you for the first time that she had once gone out with Mr Cooper and this caused you some concern.
The group continued further drinking after meeting up with Tenille's sister and at some point in the evening, you and Katrina Moburne began to argue. Apparently Mr Cooper saw that you were becoming rough and told you so and that you became upset with the situation and…

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 Dow v R

Details

AGLC: Dow v R [2010] VSCA 274
Case: [2010] VSCA 274
Decision Date: 20 October 2010

CaseChat Overview and Summary

The case of Dow v R involved an appeal against a sentence imposed by the lower court. The appellant, Dow, had been found guilty of causing serious injury intentionally. The appeal was heard in the higher court, which considered whether the original sentence was appropriate and whether the Crown's concession of error should be accepted. The central issue was whether the original sentence was unduly lenient or harsh, and whether the Crown's concession should lead to a reduction in the sentence.

The court acknowledged that the Crown had conceded an error in the calculation of the sentence, which was significant as it directly affected the length of the sentence imposed on the appellant. The court had to determine whether the concession of error was valid and, if so, whether it warranted a reduction in the sentence. The court also considered whether the original sentence was proportionate to the gravity of the offence. The Crown's concession of error was accepted, and the court found that the original sentence was unduly lenient given the nature of the offence.

In light of the Crown's concession of error and the disproportionate nature of the original sentence, the higher court allowed the appeal. The appellant was re-sentenced, and the court emphasised that this decision was specific to the circumstances of this case and did not establish a precedent. The new sentence was deemed appropriate given the nature of the offence and the accepted error in the original sentencing calculation. The court's decision was communicated clearly, ensuring that the outcome was specific to the facts and did not set a general legal principle.

Orders