DOWNEY -v- THE QUEEN [2002] WASCA 59

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 59
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:91/2001	Heard:	5 FEBRUARY 2002
Coram:	MALCOLM CJ ANDERSON J STEYTLER J	Delivered:	21/03/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MICHAEL PHILIP DOWNEY THE QUEEN
Catchwords:	Criminal law Sentencing Totality principle Whether sentence manifestly excessive 20yearold male with 58 previous convictions 4 years for 14 offences cumulative on sentence of 6 years already being served for armed robbery not set aside as excessive
Legislation:	Government Railways Act 1904
Case References:	Carreras v R (1992) 60 A Crim R 402 Cabassi v The Queen [2000] WASCA 305 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Ward [1999] WASCA 157 Wade v The Queen [2001] WASCA 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DOWNEY -v- THE QUEEN [2002] WASCA 59 CORAM : MALCOLM CJ

ANDERSON J

STEYTLER J

HEARD : 5 FEBRUARY 2002 DELIVERED : 21 MARCH 2002 FILE NO/S : CCA 91 of 2001 BETWEEN : MICHAEL PHILIP DOWNEY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentencing - Totality principle - Whether sentence manifestly excessive - 20yearold male with 58 previous convictions - 4 years for 14 offences cumulative on sentence of 6 years already being served for armed robbery not set aside as excessive

Legislation:

Government Railways Act 1904

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr B S Hanbury

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Beau Hanbury

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Carreras v R (1992) 60 A Crim R 402

Case(s) also cited:

Cabassi v The Queen [2000] WASCA 305
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Ward [1999] WASCA 157
Wade v The Queen [2001] WASCA 252

(Page 3)

1 MALCOLM CJ: In my opinion this application for leave to appeal should be granted but the appeal dismissed. I have reached this conclusion for the reasons to be published by Anderson J with which I am in entire agreement.

2 I would only wish to add that it was extremely unfortunate that the papers were organised in the form of an appeal book and two supplementary appeal books without detailed references to facilitate the task of tracking down the proceedings in which the various sentences were imposed and the documents which were relevant to them. I am most grateful for Anderson J preparing a detailed chronology of the various offences with which the applicant was convicted and the sentences…

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 Downey v The Queen

Details

AGLC: Downey v The Queen [2002] WASCA 59
Case: [2002] WASCA 59
Decision Date: 21 MARCH 2002

CaseChat Overview and Summary

In the case of Downey v The Queen, the appellant, a 20-year-old male with a history of 58 prior convictions, challenged the cumulative sentence imposed upon him for 14 additional offences. The cumulative sentence amounted to four years, which was to be served concurrently with a six-year sentence already being served for armed robbery. The appellant argued that the total sentence was manifestly excessive, and the matter was brought before the court for review.

The central legal issue that the court was required to address was whether the sentence imposed by the trial judge was manifestly excessive. The appellant's argument was based on the totality principle, which dictates that the total punishment should not be disproportionate to the gravity of the offender's criminal conduct and his or her personal circumstances. The court considered the appellant's extensive criminal history, his young age, and the nature of the offences committed when determining whether the sentence was manifestly excessive.

The court, in dismissing the appeal, found that the trial judge had given appropriate consideration to the totality principle and the appellant's personal circumstances. The court emphasised the appellant's persistent criminal behaviour and the need to protect the community from further offending. It was held that the sentence imposed was not manifestly excessive, taking into account the totality of the appellant's offending and the need to maintain public confidence in the criminal justice system.

No further orders were made by the court, as the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Appeal dismissed

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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