DPP v Doherty - [2002] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 185 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
SHAYNE MATTHEW DOHERTY

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JUDGES:	ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 September 2002
DATE OF JUDGMENT:	19 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 213

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CRIMINAL LAW - Sentencing - Appeal by DPP against a total effective sentence of two-and-a-half years and a minimum term of 15 months for armed robbery, theft of a motor car and arson - Principles of parity and double jeopardy considered - Sentence manifestly inadequate - Error of law made in that the sentencing judge omitted to cancel the respondent's driver licence.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P.A. Coghlan, QC, DPP and Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, QC and Mr S. Gardner	Galbally & O’Bryan

ORMISTON, J.A.:

Although I agree in the disposition of this appeal proposed by O’Bryan, A.J.A., I do so with some reluctance. I find it especially strange that it should be argued that we are constrained by the so called principles as to parity and disparity to impose a sentence so low as that in fact imposed on the respondent by comparing it with that imposed on his co-offender Chand, in each case for armed robbery, theft and arson of a motor car. To my mind each of the sentences imposed by the learned sentencing judge was wholly inappropriate, certainly the two-and-a-half year total effective sentence imposed in the case of the respondent and almost certainly[1] the three-and-a-half year total effective sentence in the case of Chand.[2] Because of the manifest inadequacy of the sentence in the case of Chand, as I perceive it, I would have preferred to say that the respondent could not have had a justifiable sense of grievance, in the eyes of the reasonable observer, if he had been dealt with on a far stricter basis, having proper regard to the objective circumstances relating to the crimes and his criminality.
[1]The doubt arises from the fact that the judge gave but two pages of reasons for the sentences imposed on Chand, making it exceptionally difficult for this Court to form any true view as to what all the relevant factors were. We were assisted, to a small extent, by the transcript and, eventually, by a copy of an obscurely expressed psychiatric report relating to Chand. But these difficulties are not uncommon, especially for sentencing judges, even though appellate courts from time to time seem to ignore them.
[2]It was equally inappropriate to impose the sentences for armed robbery (which were identical to the total effective sentences) and likewise the minimum terms to be served before eligibility for parole, which were 15 months and 2 years respectively.

However, the argument was not presented in that way by the appellant who sought to justify a failure to bring a like appeal in the case of Chand by saying that he…

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 Doherty

Details

AGLC: Director of Public Prosecutions v Doherty [2002] VSCA 213
Case: [2002] VSCA 213
Decision Date: 19 December 2002

CaseChat Overview and Summary

The respondent was convicted of armed robbery, theft of a motor car and arson. The Crown prosecutor appealed against the sentence of two-and-a-half years with a minimum term of 15 months. The issue before the court was whether the sentence was manifestly inadequate, taking into account the principles of parity and double jeopardy. Additionally, the court considered whether the sentencing judge erred by not cancelling the respondent's driver's licence. The court held that the sentence was manifestly inadequate, and that the sentencing judge erred by not cancelling the respondent's driver's licence. The appeal was allowed, and a new sentence was to be determined by the sentencing judge. The court noted that the sentencing judge should consider the principles of parity and double jeopardy when determining the new sentence, and that the cancellation of the respondent's driver's licence should be taken into account. The court did not provide specific details of the new sentence to be imposed.

Orders