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DPP v Dowie

DPP v Dowie

Case [2009] VSCA 154 26 June 2009

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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…

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 Dowie

Details

AGLC: DPP v Dowie [2009] VSCA 154
Case: [2009] VSCA 154
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) against Dowie involved a defendant who had been found guilty of multiple serious criminal offences, including abduction with intent to rape, actual rape, and causing serious injury with intent. The case was heard in the High Court of Australia. The central issue was whether the sentence imposed on the respondent was manifestly inadequate in light of the gravity of the crimes committed.

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