R v Dewhirst - [2001] VSC 214

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1490 of 1999

THE QUEEN

MICHAEL PHILLIP DEWHIRST

---

JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	22 JUNE 2001
CASE MAY BE CITED AS:	R. v. DEWHIRST
MEDIUM NEUTRAL CITATION:	[2001] VSC 214

---

CATCHWORDS: Sentence – Affray – Assault upon security guards at nightclub – Shooting of guards by other participant indicative of seriousness of offence – Need for general deterrence – Sentence of 18 months with minimum of 12 months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W. Morgan-Payler QC with Mr. D. Hallowes	Office of Public Prosecutions
For the Accused	Mr. R. Lewis	Ms. Marita Altman, Lethbridges

HIS HONOUR:

Michael Phillip Dewhirst, you have pleaded guilty to a charge that, at Melbourne, on 6 December 1998, you unlawfully fought and made an affray. That charge carries a maximum sentence of five years. In order to sentence you, it is necessary to briefly examine the facts surrounding the commission of this offence so as to place your actions in context.

On 6 December 1998, at about 4.30 a.m. you were one of a group of five young men who went to the Dome Nightclub in Commercial Road, Prahran. A large number of potential patrons were awaiting entry to the venue. The leader of your group appears to have been a Dino Dibra, (now deceased); also present was a person named Armen Molic. Your group was refused entry into the nightclub apparently because of the past behaviour of Dino Dibra. According to your version of events, given in a record of interview, Dino Dibra and the group were regarded as trouble makers. This assessment was disputed, principally by Dibra and a fight broke out. You assert that one of the security personnel kicked you in the face, that you grabbed his leg and pulled him forward and then aimed a kick at his testicles. You told police you punched him in the head. You stated that security staff then advanced with baseball bats. The evidence (including the security video), indicates only one such bat (some 60 cms in length) which was produced after your group had commenced this altercation.

You told police that, observing one of your companions being attacked by several security staff, you grabbed a pole (being one of the stanchions used in roping off the entrance area of the nightclub). You said you probably swung it two or three times and you hit one of the security guards in the area of the shoulder. On the material it appears that a Mr. Talakouras was the person struck by you. It was subsequent to this time that you heard gunshots. You then saw the group taking off and you moved to catch up with them. You told the investigating police you were not affected by liquor at this time.

Extracts of the altercation were captured on a security video every two seconds. The video is not clear but it…

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 Dewhirst

Details

AGLC: R v Dewhirst [2001] VSC 214
Case: [2001] VSC 214
Decision Date: 22 June 2001

CaseChat Overview and Summary

In the case of R v Dewhirst, the respondent, Dewhirst, was convicted of engaging in an affray at a nightclub. The incident involved an assault upon security guards, which escalated to the point where another participant in the affray shot the guards. The matter was brought before the court to determine an appropriate sentence for Dewhirst’s involvement in the affray, considering the gravity of the incident and the need for general deterrence.

The primary legal issue before the court was the appropriate sentencing for Dewhirst's involvement in an affray that resulted in serious physical harm to security guards. The court had to balance the culpability of Dewhirst against the need to deter similar behaviour in the future. Additionally, the court needed to consider the severity of the incident, particularly as evidenced by the shooting of the guards by another participant. The court also had to evaluate the mitigating factors present in Dewhirst's case, including his otherwise clean criminal record and potential for rehabilitation.

In delivering the judgment, the court acknowledged the significant harm caused by the affray and the necessity for a sentence that would serve as a deterrent to others. The court noted that while Dewhirst did not directly cause the shooting, his participation in the affray contributed to the escalation of violence. The court emphasised the importance of maintaining public safety and order, which necessitated a sentence that reflected the seriousness of the crime. Consequently, the court imposed a sentence of 18 months imprisonment, with a non-parole period of 12 months, to adequately address the need for punishment and deterrence.

The final orders of the court were that Dewhirst is to serve 18 months imprisonment, with a non-parole period of 12 months. This sentence aims to balance the need for punishment, general deterrence, and the potential for rehabilitation of Dewhirst.

Orders