R v Dougherty - [1999] QCA 73

99.73

COURT OF APPEAL

McMURDO P
McPHERSON JA
MUIR J

CA No 360 of 1998
CA No 362 of 1998

THE QUEEN

ALAN BERNARD DOUGHERTY and
ANTHONY PHILLIP DOYLE Applicants

BRISBANE

..DATE 17/03/99

JUDGMENT

THE PRESIDENT: These are applications for leave to appeal from a term of imprisonment of eight years imposed on the applicants for the offence of armed robbery in company with personal violence. The offenders were declared serious violent offenders pursuant to section 161B(3) of the Penalties and Sentences Act 1992.

They also pleaded guilty to one offence of housebreaking, one offence of assault occasioning bodily harm whilst armed in company, one offence of unlawful use of a motor vehicle, and one offence of possession of amphetamine with a circumstance of aggravation.

The facts, which are extremely serious, are as follows. The complainants lived on a 10 acre property at Boreen Point with the three children aged 8, 11 and 14. In an adjacent shed John and Sue Browning resided. It appears that John Browning had been manufacturing amphetamine.

The Crown case is that the Summers family were ignorant of the presence of drugs. This fact was not disputed at sentence, and in any case is largely irrelevant, although today the applicant Dougherty claims that Summers was involved in the drug scene.

The applicants came to the property with an unidentified accomplice in search of money and drugs. All three were dressed in dark clothing and balaclavas to avoid identification. They were armed with loaded weapons, namely a rifle, a sawn-off shotgun, and a long-barrelled pistol. Mr Summers arrived home with his 14-year-old son at about 8.15 p.m.

Because the offenders were so heavily disguised it was impossible for the Crown to particularise who did what. It seems, from remarks made at the sentence, that Doyle had the sawn-off weapon and the un-named offender held the pistol, because it was the un-named offender who, on defence counsel's instructions, was with the family when the offences occurred. Dougherty's counsel at the sentence submitted that Dougherty did not inflict the violence, but the facts were not disputed at the sentence.

Mr Dougherty seeks to dispute those facts now, although he accepts that this Court must act on the facts as given below. As Mr Summers walked towards his home one offender yelled out, "Stop, you fucking cunt. Get down on your knees." The complainant thought it was a joke, but was then struck on the head with the butt of a gun and ordered to do as he was told. He was again assaulted and brought to his knees. He was then hit in the face with the rifle.

The rifle barrel was then put in his face with a threat to all seven occupants of the property. The threat was then reinforced by another offender who pointed the sawn-off weapon and said, "Anyone move and I'll blow your fucking head off." The offender with the rifle drove Mr Summers' head to the ground with the barrel of…

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 Dougherty

Details

AGLC: R v Dougherty [1999] QCA 73
Case: [1999] QCA 73
Decision Date: 17/03/1999

CaseChat Overview and Summary

In the matter of R v Dougherty, the applicants, Alan Bernard Dougherty and Anthony Phillip Doyle, sought leave to appeal against the terms of their imprisonment, imposed for their involvement in a series of serious offences, including armed robbery with personal violence, housebreaking, assault occasioning bodily harm while armed, unlawful use of a motor vehicle, and possession of amphetamine with aggravation. The applicants challenged the severity of the eight-year sentence and the declaration under section 161B(3) of the Penalties and Sentences Act 1992, which classified them as serious violent offenders. The dispute arose from the applicants' participation in a violent home invasion where they assaulted Mr. Summers, causing significant injuries, and threatened the entire family, including young children, with firearms.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge erred in considering the applicants' lack of cooperation as a mitigating factor. The applicants argued that the sentence was excessive and that the judge should not have imposed a harsher sentence because they did not implicate a third co-offender. The court needed to determine if the sentencing judge correctly applied the law and if the sentence was proportionate to the gravity of the offences.

The Court of Appeal held that the sentence was not manifestly excessive and that the judge did not err in considering the applicants' lack of cooperation. The court noted that the sentencing judge appropriately focused on the extreme seriousness of the offences and the high level of violence involved. The declarations under section 161B(3) were also justified given the nature of the crimes. The court found that the applicants had not demonstrated any error in the sentencing process or that the sentence was manifestly disproportionate. Consequently, both applications for leave to appeal were dismissed, and the original sentence was upheld.

Orders