Serial No 41/1989
List "A"
CITATION: R v Dowie [1989] TASSC 44; (1989) Tas R 167; A41/1989
PARTIES: R
v
DOWIE
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 45/1989
DELIVERED ON: 1 September 1989
DELIVERED AT: Hobart
JUDGMENT OF: Nettlefold, Underwood and Wright JJ
Judgment Number: A41/1989
Number of paragraphs: 66
Serial No 41/1989
List "A"
File No CCA 45/1989
R v DOWIE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
UNDERWOOD J
WRIGHT J
1 September 1989
Orders of the Court:
Application for leave to appeal granted.
Appeal dismissed.
Serial No 41/1989
List "A"
File No CCA 45/1989
R v DOWIE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
1 September 1989
I have studied the reasons for judgment prepared by Underwood J I agree with them and with the orders he proposes.
File No CCA 45/1989
R v DOWIE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
1 September 1989
The respondent was convicted, on his pleas of guilty, of one count of aggravated burglary and one count of assault. Upon the whole indictment he was sentenced to six months' imprisonment but the execution of the whole of that sentence was suspended upon condition that the respondent be of good behaviour for a period of two years. The particulars pleaded against the respondent with respect to each count are as follows:
"1 STATEMENT OF CRIME
First CountAGGRAVATED BURGLARY - Contrary to Section 245 of the Criminal Code.
PARTICULARS
RODERICK BUCHANAN DOWIE at Reedy Marsh in Tasmania on or about the 28th day of February, 1989 entered as a trespasser a building namely a dwelling house occupied by Ashley David Hallam with intent to commit the crime of assault therein and whilst committing that burglary he offered violence to the said Ashley David Hallam by pointing a shotgun at him and saying the words 'I am going to kill you' and by moving towards the said Ashley David Hallam and pushing the end of the barrel into his stomach.
2 STATEMENT OF CRIME
Second CountASSAULT – Contrary to Section 184 of the Criminal Code.
PARTICULARS
RODERICK BUCHANAN DOWIE at Reedy Marsh in Tasmania on or about the 28th day of February, 1989 at a time subsequent to that in Count 1 unlawfully assaulted Ashley David Hallam by pointing a shotgun at his forehead and by saying the words 'I am going to kill you. You ripped me off you bastard', by pushing the shotgun into his cheek near his eye, and hitting him on the head with it, by prodding him on the head and neck with the shotgun, by discharging the shotgun in the near vicinity of his head, and pushing the shotgun into his neck, by hitting him around the head with the shotgun, and by saying 'who did it', by pushing the shotgun into his cheek near his eye and saying 'if you don't tell me, you're a dead man', by pointing the shotgun at…
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- AGLC
- R v Dowie [1989] TASSC 44
- Case
- [1989] TASSC 44
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing appeals against sentence, both by the Crown and the defendant. It noted that while the appellate court does not interfere with the sentence merely because it considers it insufficient or excessive, it does intervene if the sentencing judge was in error in acting on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence. The court highlighted that a Crown appeal, in particular, requires careful consideration due to the vested interest the defendant has in their freedom, which is twice at risk during the appeal process. The court examined whether the sentence imposed was unreasonable in relation to the offence and the circumstances of the case, considering both the trial judge's reasoning and the nature of the sentence itself.
After a detailed analysis, the court concluded that the sentence imposed by the trial judge was not so unreasonable as to warrant intervention by the appellate court. The court found that the trial judge had properly considered the relevant factors and exercised their discretion within the bounds of the law. Consequently, the appeal by the Crown was dismissed, and the original sentence stood.
The final order of the court was that the appeal brought by the Crown against the sentence imposed on Dowie be dismissed, and the sentence originally imposed by the trial judge be upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Western Australia, the Chief Justice said in R v Peterson [1984] WAR 329 with reference to the Criminal Code (WA) s688(2)(d) at p330:"The principles to be applied on an appeal brought by the Crown against sentence under that provision can now be taken to be settled by the decisions of this Court. They are in all respects identical to the principles which other courts in Australia apply under like provisions. A clear statement of those principles is to be found in the reasons of the Federal Court of Australia in R v Tait (1979) 46 FLR 386 at 387–88 (Brennan, Deane and Gallop JJ) as follows:–'The relevant provisions of the Federal Court of Australia Act do not provide any basis for distinguishing between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant. The principles which limit the exercise by an appellate court of its jurisdiction with respect to a discretionary sentence apply in each class of case. Those principles were expressed in Harris v R (1954) 90 CLR 652, which was followed by this court in Kovac v R (1977) 15 ALR 637, and which (at 642–3) contains a citation from Cranssen v R (1936) 55 CLR 509 at 519–20: "...the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over–severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority."An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in which the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R (1913) 16 CLR 336 at 339–40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R (1928) 41 CLR 230 at 249; Griffiths v R (1977) 137 CLR 293).Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time–honoured concepts of criminal administration" (per Barwick CJ, Peel v R (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court'." [My emphasis].See also R v Morley [1985] WAR 65; R v Jones [1984] WAR 175.