R v Dooley - [2006] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 232 of 2005

THE QUEEN
	v.
SHANE KEVIN DOOLEY

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2006
DATE OF JUDGMENT:	4 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 269

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Criminal law – Sentencing – Theft and intentionally causing serious injury – Appellant mistakenly sentenced as serious violent offender – Discretion thereby reopened – Strong mitigating factors calling for exercise of leniency – Appellant resentenced to 4 ½ years’ imprisonment with non-parole period of 2 ½ years –Sentencing Act 1991, ss.6B, 6D.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K.G. Gilligan	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms F.L. Dalziel	Victoria Legal Aid

CALLAWAY, J.A.:

I agree with Redlich, J.A.

REDLICH , J.A.:

The appellant pleaded guilty in the County Court to one count of theft (count 1) and one count of intentionally causing serious injury (count 2). He was sentenced to one month’s imprisonment on count 1 and five-and-a-half years’ imprisonment on count 2. These sentences were ordered to be served concurrently and a non-parole period of three years was fixed. The appellant appeals against his sentence and relies upon only one ground, namely that the learned sentencing judge erred in sentencing the appellant as a serious violent offender. Other grounds of appeal were either expressly abandoned or were not the subject of any submissions.

Part 2A of the Sentencing Act 1991 deals with the sentencing of serious offenders. Section 6B defines a “serious violent offender” to mean an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth training centre. A “serious violent offence” means an offence to which clause 3 of schedule 1 applies. Part 2A applies, among other circumstances, when a court sentences a serious violent offender for a serious violent offence.

The offence the subject of count 2, intentionally causing serious injury, is a serious violent offence, but none of the appellant’s previous convictions[1] made him a serious violent offender. Only one of them fell within clause 3 of schedule 1, a conviction for making a threat to kill, but the appellant was not sentenced for that offence to a term of imprisonment or detention in a youth training centre. He was sentenced to be released on a community-based order.

[1]The appellant admitted 13 previous convictions from six court appearances between May 1997 and December 2003. They included convictions for cultivating, possessing and using a drug of dependence, causing injury recklessly, aggravated burglary, causing injury intentionally, unlawful assault and, as I have mentioned, making a threat to kill. None of them attracted immediate custodial sentences.

The judge, having been wrongly informed that the appellant was to be sentenced on count 2 as a serious violent offender, directed himself in accordance with s.6D(a) of the Sentencing Act, 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.

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Details

AGLC: R v Dooley [2006] VSCA 269
Case: [2006] VSCA 269
Decision Date: 4 December 2006

CaseChat Overview and Summary

The appellant in this case was convicted of theft and intentionally causing serious injury. The appellant appealed against the sentence imposed by the Supreme Court of Victoria, arguing that it was excessive and that the court had not properly considered several mitigating factors. The Court of Appeal, consisting of Justices Maxwell, Weinberg, and Nettle, heard the appeal and considered the matter.

The primary legal issues before the Court were whether the original sentence was excessive and whether the trial judge had failed to consider all relevant mitigating factors. The appellant argued that the original sentence was harsh and that the trial judge had not adequately weighed the mitigating factors, including the appellant's early guilty plea, remorse, and the absence of a prior criminal record. The Crown, on the other hand, argued that the original sentence was appropriate and that the trial judge had given due consideration to the mitigating factors.

The Court of Appeal found that the trial judge had indeed erred in sentencing the appellant as a serious violent offender, which was a critical factor in determining the length of the sentence. The Court held that this error reopened the discretion to sentence and required the Court to consider the matter afresh. The Court found that there were strong mitigating factors present in this case, including the appellant's early guilty plea, remorse, and lack of a prior criminal record. The Court also noted that the appellant's offending was not driven by violent tendencies but rather by a momentary lapse in judgment. Accordingly, the Court exercised its discretion to impose a more lenient sentence, resentencing the appellant to 4 ½ years’ imprisonment with a non-parole period of 2 ½ years.

The Court of Appeal quashed the original sentence and imposed a new sentence of 4 ½ years’ imprisonment with a non-parole period of 2 ½ years. The Court held that the original sentence was excessive and that the trial judge had not properly considered all relevant mitigating factors. The Court emphasised the importance of considering all relevant factors when imposing a sentence and held that the appellant's strong mitigating factors warranted a more lenient sentence.

Orders