Dowe v The Queen - [2012] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0118

TYRONE DOWE	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2012
DATE OF JUDGMENT	7 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 39
JUDGMENT APPEALED FROM	R v Dowe (Unreported, County Court of Victoria, Judge Parsons, 18 May 2011)

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CRIMINAL LAW – Sentence – Multiple charges of robbery, one charge of attempted robbery and one charge of intentionally causing injury on two indictments – Young offender of indigenous background – Alcohol and drug abuse - Total effective sentence of five years and six months’ imprisonment with non-parole period of three years and three months – Offences committed whilst on parole – By reason of reclaimed parole and another sentence for unrelated offending the appellant could only claim small portion of pre-sentence detention – Whether insufficient weight given to principle of totality in respect of non-parole period – Sentencing judge failed to give due weight to principle of totality – Appeal allowed – New non-parole period of two years and three months fixed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Danos	Matthew White & Associates
For the Respondent	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant, Tyrone Dowe, pleaded guilty in the County Court at Melbourne to a series of offences contained in two separate indictments. He was sentenced on 18 May 2011.

The first indictment (C0907193.1) contained three charges, each of robbery, contrary to s 75(2) of the Crimes Act 1958. The appellant was sentenced to three years’ imprisonment on each of those charges.

The second indictment (Y03527543.1) contained two charges - one of attempted armed robbery, and one of intentionally causing injury. The appellant was sentenced to twelve months’ imprisonment on the first of those charges, and two years’ imprisonment on the second.

The sentencing judge treated the first three year sentence on the first indictment as the base sentence. He ordered that nine months of the second of those charges and nine months on the third of those charges, together with three months upon the charge of attempted armed robbery and nine months upon the charge of intentionally cause injury, be cumulated upon each other and upon the base sentence.

That made a total effective sentence of five years and six months’ imprisonment. His Honour fixed a non-parole period of three years and three months.

The background facts need not be set out in any great detail.

The three robberies that were the subject of the first indictment all occurred on 13 January 2009. The first robbery took place at 11:58am, and was committed at the Camberwell West Post Office and Newsagency. Two offenders, wearing sunglasses and a cap or beanie, entered the premises. When all the customers had left the store, one of them approached an employee and demanded money. The amount taken was $4,890.

The second robbery took…

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 Dowe v The Queen

Details

AGLC: Dowe v The Queen [2012] VSCA 39
Case: [2012] VSCA 39
Decision Date: 7 March 2012

CaseChat Overview and Summary

The case of Dowe v The Queen involved the appellant, who was sentenced to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and three months. The appellant was found guilty of multiple charges of robbery, one charge of attempted robbery, and one charge of intentionally causing injury on two indictments. The court was required to consider whether the sentencing judge failed to give sufficient weight to the principle of totality in respect of the non-parole period.

The legal issues before the court were whether the sentencing judge failed to give due weight to the principle of totality and whether the total effective sentence and the non-parole period were appropriate. The appellant argued that due to reclaimed parole and another sentence for unrelated offending, they could only claim a small portion of pre-sentence detention, and therefore, the non-parole period should be reduced.

The court found that the sentencing judge failed to give sufficient weight to the principle of totality in respect of the non-parole period. The court held that the total effective sentence was appropriate, but the non-parole period was too long. The court fixed a new non-parole period of two years and three months and allowed the appeal. The court held that there was no point of principle involved in this case.

The final orders of the court were that the appeal was allowed, and a new non-parole period of two years and three months was fixed. The rest of the sentence remained unchanged. The court did not consider it necessary to order a re-sentencing hearing.

Orders