Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dowling v R [2017] NSWCCA 98 Hearing dates: 10 May 2017 Date of orders: 17 May 2017 Decision date: 17 May 2017 Before: Leeming JA at [1]; Adamson J at [2]; Wilson J at [41] Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.Catchwords: CRIMINAL LAW – appeal against severity of sentence – whether the sentence was manifestly excessive –whether sentencing judge proceeded on incorrect factual basis – HELD – appeal dismissed – agreement to facts are part of plea of guilty – reduction of total effective sentence sought by applicant not in accordance with process of instinctive synthesis – no error in approach of sentencing judge in determining individual sentences or total effective sentence Legislation Cited: Criminal Appeal Act 2012 (NSW), s 5
Crimes Act 1900 (NSW), ss 51B, 95, 154C,
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), s10ACases Cited: CL v R [2014] NSWCCA 196
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Crowley [2004] NSWCCA 256
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14Category: Principal judgment Parties: Zachary Joel Dowling (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Applicant (Self-represented)
N Williams (Regina)
Solicitor for Public Prosecutions (Regina)
File Number(s): 2014/149409 Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 3 September 2015
- Before:
- Ellis DCJ
- File Number(s):
- 2014/149409
Judgment
-
LEEMING JA: I agree with Adamson J.
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ADAMSON J: By application filed on 23 March 2017 the applicant, Zachary Dowling, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 2012 (NSW) against three sentences imposed by Ellis DCJ on 3 September 2015 for offences committed on 17 May 2014.
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The total effect of the three sentences imposed, which are set out in the table below, was a term of 8 years’ imprisonment, commencing on 17 May 2014 and expiring on 16 May 2022, with a non-parole period of 5 years, commencing on 17 May 2014 and expiring on 16 May 2019.
Offence
Section of Crimes Act 1900 (NSW)
Maximum penalty/ Standard non-parole period (SNPP)
Sentence imposed after discount for plea of guilty
Discount for plea of guilty
Aggravated robbery
95(1)
20 years’ imprisonment.
Imprisonment for 6 years commencing on 17 May 2016 and concluding on 16 May 2022, with a non-parole period of 3 years concluding on 16 May 2019.
15%
Aggravated assault with intent to take/ drive…
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- AGLC
- Dowling v The Queen [2017] NSWCCA 98
- Case
- [2017] NSWCCA 98
- Decision Date
CaseChat Overview and Summary
The Court considered the principles of sentencing in Australia, emphasising the importance of the sentencing judge's role in determining an appropriate sentence. It was noted that the sentencing judge had carefully considered the circumstances of the offence and the respondent's background, and had provided detailed reasons for the sentence imposed. The Court held that the sentencing judge's approach to the process of instinctive synthesis was not in error, as it was a legitimate exercise of judicial discretion. Furthermore, the Court found that there was no error in the factual basis upon which the sentencing judge proceeded, as the agreement to facts was properly considered as part of the plea of guilty. Consequently, the appeal was dismissed.
The High Court of Australia concluded that the sentence imposed was not manifestly excessive and that there was no error in the sentencing judge's approach. The appeal was dismissed, and the original sentence stood. The Court emphasised the importance of allowing sentencing judges the appropriate discretion in determining sentences, and that the appellate courts should only intervene in cases where there has been a clear error in the process of sentencing. This decision reinforces the principle that the Court should be cautious in interfering with the primary judge's assessment of the facts and the appropriate sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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