Phillip Archibald Dow v The Queen - [2022] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0179

PHILLIP ARCHIBALD DOW	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2022
DATE OF JUDGMENT:	12 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 135
JUDGMENT APPEALED FROM:	[2021] VCC 1800 (Judge Hannebery)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, common assault, intentionally cause injury and intentionally damage property – Sentence of 5 years, 4 months’ imprisonment with 4 years non-parole – Offending of limited duration – Deprived upbringing and mental impairments causally connected to offending – Manifest excess established – Appeal allowed – Resentenced to 4 years and 1 month’s imprisonment with 2 years, 9 months non-parole.

R v Verdins (2007) 16 VR 269; [2007] VSCA 102 applied.

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Counsel
Applicant:		Mr C Mandy SC with Mr J Connolly
Respondent:		Mr P Bourke QC
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA:

The applicant was convicted by a jury of two charges of aggravated burglary, common assault, causing injury intentionally and damaging property.
He was sentenced in the County Court at Latrobe Valley on 11 November 2021 as set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years	3 years	Base
2	Common assault[2]	5 years	15 months	6 months
3	Aggravated burglary	25 years	3 years	1 year
4	Intentionally cause injury[3]	10 years	27 months	9 months
7	Intentionally damage property[4]	10 years	3 months	1 month
Total Effective Sentence:		5 years, 4 months’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		275 days
Other Relevant Orders: 1. Forfeiture order.

[1]Crimes Act 1958, s 77.

[2]Crimes Act 1958, s 320.

[3]Crimes Act 1958, s 18.

[4]Crimes Act 1958, s 197(1).

The applicant seeks leave to appeal on seven grounds of appeal.
Ground 1: The learned sentencing judge: (a) came to a conclusion regarding the applicant’s moral culpability that was not reasonably open; and (b) erred in principle in his approach to assessing the applicant’s moral culpability.
Ground 2: The learned sentencing judge erred in his application of limb 3 of Verdins by only ‘somewhat’ moderating general deterrence.
Ground 3: The learned sentencing judge erred by finding that specific deterrence should not be moderated.
Ground 4: The learned sentencing judge erred by finding that limb 6 of Verdins did not apply.
Ground 5: The learned sentencing judge erred by failing to moderate the need for just punishment and denunciation in light of the applicant’s cognitive and psychological impairments, and his deprived background.
Ground 6: The orders for cumulation (and, consequentially, the total effective sentence) and the non-parole period were manifestly excessive.
Ground 7: The pre-sentence detention declaration was incorrect.

Factual summary

On 21 August 2018 the applicant, a 47-year-old Aboriginal man was staying with a friend, Craig Johnson, in unit 1 of a four-unit complex in Moe. At…

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.

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Details

Case: [2022] VSCA 135
Decision Date: 12 July 2022

CaseChat Overview and Summary

Phillip Archibald Dow has appealed against his conviction and sentence in relation to various criminal offences, including aggravated burglary, common assault, intentionally causing injury, and intentionally damaging property. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the original sentence imposed on Mr. Dow was manifestly excessive, given the circumstances of his offending and his personal background.

The court had to consider whether the sentence was disproportionate in light of the nature and circumstances of the offences, as well as the offender’s personal history. This included examining whether Mr. Dow’s upbringing and mental impairments were causally connected to his offending behaviour. The court was also tasked with determining whether the original sentence imposed by the trial judge was manifestly excessive, taking into account all relevant factors.

In its judgment, the court found that the sentence imposed was manifestly excessive. It highlighted the limited duration of Mr. Dow's offending, his deprived upbringing, and the causal connection between his mental impairments and his criminal behaviour. The court concluded that the original sentence did not adequately reflect these mitigating factors. As a result, the appeal was allowed, and the matter was remitted to the trial judge for resentencing. The court subsequently resentenced Mr. Dow to 4 years and 1 month’s imprisonment with a non-parole period of 2 years and 9 months.

Orders