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Dowling v The Queen

Dowling v The Queen

Case [2017] NSWCCA 98 17 May 2017

Appeal

Sentencing

Criminal Law

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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), s10A
Cases 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 14
Category: Principal judgment
Parties: Zachary Joel Dowling (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (Self-represented)
N Williams (Regina)
Solicitors:
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.
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.
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…

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 Dowling v The Queen

Details

AGLC: Dowling v The Queen [2017] NSWCCA 98
Case: [2017] NSWCCA 98
Decision Date: 17 May 2017

CaseChat Overview and Summary

The respondent, Dowling, appeals against the sentence imposed by the Supreme Court of Victoria for the offence of armed robbery. The appeal questions whether the sentence was manifestly excessive and whether the sentencing judge proceeded on an incorrect factual basis. The appeal was heard by the High Court of Australia. The central issue before the Court was whether the sentence imposed was manifestly excessive and whether there was any error in the factual basis upon which the sentencing judge relied. Specifically, the Court needed to determine if the sentencing judge erred in his approach to the process of instinctive synthesis when calculating the total effective sentence, and if the agreement to facts that formed part of the respondent's plea of guilty was correctly considered.

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