SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 913 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID DOWIE |
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JUDGES: | MAXWELL P, VINCENT JA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 May 2009 | |
DATE OF JUDGMENT: | 26 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 154 | |
JUDGMENT APPEALED FROM: | DPP v Dowie (Unreported, County Court of Victoria, Judge Barnett, 24 October 2008) | |
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CRIMINAL LAW – Sentence – Abduction with intent to rape – Rape – Recklessly cause serious injury – Intentionally cause serious injury – Whether sentence imposed manifestly inadequate – Aggravating features – Serious sexual offender – Protection of the community – Right to feel safe in public – Appeal allowed – Respondent re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Grace QC | Robert Stary Lawyers |
MAXWELL P
VINCENT JA
COGHLAN AJA:
This is an appeal by the Director of Public Prosecutions against sentences imposed upon the respondent in the County Court at Melbourne, on 24 October 2008, and arising out of offences committed against a 21 year old female at Elwood on 20 October 2000. These matters were encompassed by Presentment No X01047514.
Factual circumstances
The circumstances were outlined by the prosecutor in the Court below as follows:
[A]t approximately 11.30 p.m., the victim, a 21-year old female referred to as the victim, left her home in Elwood and began walking along Mitford Street, Elwood, towards the 7-Eleven store situated on the corner of Barkly and [Blessington] Streets, Elwood. On arrival approximately 10 minutes later she purchased a number of items including a block of chocolate, cigarettes tea bags and ice cream. The victim then began walking back home along Mitford Street. When she was about half-way home she heard a noise behind her and turned around. She was then confronted by the [respondent] who was armed with a knife. The [respondent] put his arm around the chest of the victim and using his right hand placed the knife to the throat of the victim. The [respondent] told her to shut up and not scream or he would kill her. The accused told her that the knife was against her jugular and he would ‘slit her throat and run.’ The victim was then frogmarched down Mitford Street right into Deakin street to the Botanical Gardens. The [respondent] was constantly telling the victim not to scream or he would slit her throat. Gives rise to Count 1, count of abduction.
He told her that he was going to have sex with her as many times as he wanted and that she was going to keep quiet. The [respondent] pushed the knife hard up against the victim's throat when he was threatening her. The victim described the knife as like a Stanley knife. The [respondent] forced the victim over the fence into the Botanical Gardens. At this time the victim dropped her bag of items that she had purchased from…
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- AGLC
- DPP v Dowie [2009] VSCA 154
- Case
- [2009] VSCA 154
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge erred in considering the sentence inadequate and if the appeal should be allowed. The court needed to determine if the sentence reflected the severity of the crimes, the culpability of the offender, and the need for protection of the community. The appeal hinged on whether the original sentence failed to adequately address the serious and violent nature of the crimes, and whether there were significant aggravating factors that warranted a harsher penalty.
The High Court found that the trial judge did indeed err in considering the sentence inadequate. The court noted that the respondent was a serious sexual offender with a history of violence against women, which constituted significant aggravating factors. The original sentence did not sufficiently reflect the need to protect the community and to ensure the respondent could no longer pose a danger to society. The court held that the sentence imposed was manifestly inadequate and allowed the appeal. The respondent was subsequently re-sentenced to a term that the court deemed appropriate given the nature and circumstances of the crimes committed.
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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