R v Dempsey - [1995] QCA 466

[1995] QCA 466

COURT OF APPEAL
DAVIES JA
THOMAS J

FRYBERG J

CA No 261 of 1995
THE QUEEN
v.

SEAN PATRICK DEMPSEY

Applicant

BRISBANE
..DATE 22/08/95
220895 D.1 T 8/PEH M/T COA95/255
THOMAS J: The applicant seeks leave to appeal against
sentences imposed in respect of two offences. The first
offence was of breaking, entering and stealing committed in
October 1994, and the sentence in respect thereof was three
years imprisonment. The other offence was armed robbery
committed on 15 November 1994, and the sentence on that matter
was six years imprisonment with a recommendation for parole
after two and a half years.

The circumstances are as follows. The breaking, entering and stealing involved the smashing of a sliding door in a shop. The applicant used a Besser block and stole 52 items of female clothing, handbags and belts, with a total value of $3,500. The repair bill was $642. The applicant was badly affected by alcohol at the time. He said he did not know why he took female clothing and he seems to have dumped most of it. The armed robbery was again committed alone and under the influence of liquor.

At 2 a.m. he went to a service station armed with a kitchen
knife. The attendant was a 57 year old man who declined to
give the applicant money when he demanded it. The applicant
used threatening words, threatening to cut him up, and
eventually a sum of $235 was passed over the counter. The
applicant did not wield the knife in a dangerous fashion
although at one stage he is described as having waved the
knife when the discussion was going on.
220895 D.1 T 8/PEH M/T COA95/255
He was apprehended soon afterwards and cooperated with police
making full admissions with respect to both matters. The
applicant pleaded guilty and was entitled to the usual benefit
of so doing. The learned sentencing Judge rightly observed
that offences of these kinds are extremely prevalent and that
the deterrent aspect was relevant. His Honour declared that
222 days spent in custody between his arrest and trial was to
be regarded as imprisonment already served.

The offences were committed four weeks apart, the common link being that they were committed whilst the applicant was severely affected by alcohol. After he was taken into custody he enrolled in a number of courses including Alcoholics Anonymous. Various certificates were presented to the sentencing Judge indicating some degree of rehabilitative attitude o the part of the applicant prior to his sentencing.

The present offender at the relevant time was 27 years old. He had a minor criminal history which included one offence related to alcoholism, and two offences of dishonesty, but they do not appear to have been serious matters. They resulted in fines.

The question then is whether the operative sentence of six
years with a recommendation for consideration of parole after
two and a half years was excessive. We have been referred to
a number of past decisions which…

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 R v Dempsey

Details

AGLC: R v Dempsey [1995] QCA 466
Case: [1995] QCA 466
Decision Date: 22/08/1995

CaseChat Overview and Summary

In the case of the Queen versus Sean Patrick Dempsey, the applicant, Sean Patrick Dempsey, sought leave to appeal against the sentences imposed for two separate offences. The first offence was breaking, entering, and stealing, for which Dempsey received a three-year imprisonment sentence. The second offence was armed robbery, for which he received a six-year imprisonment sentence with a recommendation for parole after two and a half years. The court had to determine whether the sentence of six years with parole eligibility after two and a half years was excessive.

The Court of Appeal considered the circumstances of the case, including the nature of the offences, Dempsey's age, criminal history, and the influence of alcohol on the commission of the crimes. The court compared the present case with other cases involving armed robbery, taking into account the degree of violence, harm done, property taken, and the professionalism of the offence. The Court of Appeal concluded that an appropriate range for the circumstances of the present severity might be around the four to five-year mark. The court also took into account Dempsey's early plea, cooperation with authorities, and his efforts towards rehabilitation.

The Court of Appeal granted leave to appeal, set aside the sentence for the armed robbery, and substituted a sentence of four years imprisonment. The court did not suggest any special recommendation for parole as the cooperation of Dempsey had been taken into account in fixing the four-year sentence. The parole recommendation made by the sentencing judge was specifically set aside to avoid confusion with the three-year sentence, which was not interfered with.

Orders