DPP v Dix - [2015] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0195

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
WARREN DIX	Respondent

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JUDGES:	MAXWELL P, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2015
DATE OF JUDGMENT:	25 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 118
JUDGMENT APPEALED FROM:	DPP v Warren Dix (Unreported, County Court of Victoria, Judge Saccardo, 8 August 2014)

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CRIMINAL LAW – Sentence – Crown appeal – Recklessly causing serious injury – ‘Glassing’ – Unprovoked attack with bottle – Alcohol-fuelled violence – Prior convictions for violence – Breach of suspended sentence – Sentence of 18 months’ imprisonment for glassing manifestly inadequate – Appeal allowed – Resentenced to 3 years and 6 months’ imprisonment – Winch v The Queen (2010) 27 VR 658 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Elston QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Ms C A Boston	Patrick W Dwyer

MAXWELL P
WEINBERG JA
BEACH JA:

Summary

This appeal raises again the issue of sentencing for ‘glassing’, a particularly nasty form of recklessly causing serious injury (‘RCSI’). The respondent (‘WD’) had a recent prior conviction for RCSI when he launched a wholly unprovoked attack on the victim in the present case, hitting him in the face with a beer bottle and fracturing the bones of his eye socket.

WD was sentenced to 18 months’ imprisonment on the glassing charge. For reasons which follow, we have concluded that the sentence was manifestly inadequate and that the appeal by the Director must be allowed. We would substitute a sentence of three years and six months’ imprisonment on that charge.

On a separate charge of intentionally causing injury (‘ICI’) (to a different victim), WD was sentenced to 12 months’ imprisonment. On resentencing, we would substitute a sentence of 18 months on that charge.

Overview

The total effective sentence was two years’ imprisonment, the elements of which were as follows:

Charge on Indictment E10783928 Offence Maximum Sentence Cumulation

1 Recklessly causing serious injury 15y 18m Base

2 Intentionally causing injury 10y 12m 2m

Breach proceeding (summary charge uplifted)

Summary charge 1 Contravene suspended sentence order 3m — —

Summary charge 2 Recklessly causing serious injury 15y 8m partially suspended [4m to serve, 4m suspended for 18m] 4m [restored]

Total Effective Sentence: 24m

Non-Parole Period: 14m

6AAA Statement: But for the plea of guilty his Honour would have imposed a total effective sentence of 3y 4m with a non-parole period of 2y.

Other orders:
Compensation order.

The circumstances of the offending were as follows. At approximately 2:40 am on 8 February 2014, WD entered a bar in Fletcher Street, Essendon. He arrived intoxicated, having been drinking shots earlier that night. He drank more shots while in the bar, as well as a bottle of beer.

Twenty minutes later, at approximately 3:00 am, WD’s girlfriend became involved in a scuffle which involved both men and women. WD also became…

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 DPP v Dix

Details

AGLC: DPP v Dix [2015] VSCA 118
Case: [2015] VSCA 118
Decision Date: 25 May 2015

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, Dix, who was convicted of recklessly causing serious injury. The respondent had used a glass bottle in an unprovoked attack, resulting in significant harm to the victim. The County Court of Victoria found Dix guilty and sentenced him to 18 months’ imprisonment, which the prosecution considered manifestly inadequate. The appeal was heard by the Court of Appeal, which was required to determine whether the original sentence was insufficient given the circumstances of the offence.

The central legal issue was whether the original sentence of 18 months’ imprisonment was manifestly inadequate. The Court of Appeal considered the nature of the offence, the respondent's prior history of violence, and the impact of the alcohol-fuelled attack. The Court examined the principles outlined in Winch v The Queen, which emphasised the need to consider the seriousness of the offence and the need for general deterrence in such cases. The Court also had to balance the need for specific deterrence, given the respondent's history, against the need for proportionality in sentencing.

The Court of Appeal found that the original sentence did not adequately reflect the gravity of the offence or serve the purposes of general and specific deterrence. The unprovoked nature of the attack, the use of a glass bottle, and the respondent’s prior convictions for violence were significant factors. The Court held that the sentence was manifestly inadequate and remitted the matter to the County Court for resentencing. Following the principles in Winch, the Court of Appeal resentenced the respondent to 3 years and 6 months’ imprisonment, with a non-parole period of 2 years.

Orders