R v Dudas - [2003] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 251 of 2002

THE QUEEN
	v.
DAVID DUDAS

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SALE
DATE OF HEARING:	20 August 2003
DATE OF JUDGMENT:	20 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 131

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Criminal law – Sentence – Burglary, theft and arson – Offences committed when applicant on community-based order and good behaviour bond – Youthful offender with prior criminal history – Sentence of four-and-a-half years with minimum term of two years ten months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.J. Thomas	Victoria Legal Aid

WINNEKE, P.:

On 3 October 2002, the appellant, then aged 20 years, was sentenced in the County Court to a total term of imprisonment of four-and-a-half years; and ordered to serve a period of two years and ten months of that term before becoming eligible for parole. That sentence was imposed for a number of offences committed by the appellant on the night of 23 April 2002 when he was aged 19 years. He pleaded guilty to those offences at the earliest opportunity and made a written statement of his offending to the police.

The appellant has – as the sentencing judge noted – a somewhat depressing criminal history. He admitted to the court 38 previous convictions from five court appearances. At the time of the commission of the offences with which we are concerned the appellant was subject to both a community-based order and a good behaviour bond granted by different courts for previous breaches of the law. His criminal history demonstrated to the judge a propensity for dishonesty and driving offences committed with complete indifference to legal sanctions imposed upon him. That history justified the comment made by the sentencing judge that:

“You are now but 19, yet have amassed a significant number of convictions for offences of dishonesty and for driving offences, the nature of which points to a generally lawless disposition.”

That description has been challenged by Mr Thomas, who has appeared for the appellant in this Court today. His Honour noted, however, that, to this point, the courts had not subjected the appellant to a custodial disposition. The mercy which the courts had previously shown and the tolerance which had been demonstrated had clearly worn thin by the time the appellant stood for sentence before this experienced County Court judge.

It is necessary to say something about the offending which brought the appellant before the County Court in September 2002. He was charged with, and pleaded guilty to, five offences arising out of a criminal episode on 23 April of that year. The offences were:

Count 1Burglary of a building in Exley Drive, Moorabbin with intent to steal.
Counts 2 and 3 Theft of various items of property belonging to two different corporate entities from the building.
Count 4Dishonestly obtaining a financial advantage by making telephone calls whilst in the…

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 Dudas

Details

AGLC: R v Dudas [2003] VSCA 131
Case: [2003] VSCA 131
Decision Date: 20 August 2003

CaseChat Overview and Summary

The case before the court involved the applicant, Dudas, who was convicted of burglary, theft, and arson. These offences were committed while the applicant was on a community-based order and a good behaviour bond. The applicant, who had a prior criminal history and was considered a youthful offender, was sentenced to four-and-a-half years in prison, with a non-parole period of two years and ten months. Dudas appealed against the severity of the sentence, arguing that it was manifestly excessive. The appeal was heard and determined by the court.

The central legal issue the court had to address was whether the sentence imposed was manifestly excessive in the circumstances. This involved assessing the nature and gravity of the offences, the applicant's criminal history, and his age at the time of the offences. The court also had to consider the principle of proportionality in sentencing and whether the sentence could be justified in the context of the community's need for protection and deterrence.

The court examined the facts of the case, including the nature of the offences and the applicant's prior criminal conduct. It considered the principle that a sentence should reflect the seriousness of the offence and the need for deterrence and protection of the community. The court noted that the applicant had a history of offending, which indicated a pattern of behaviour that required significant intervention. Despite this, the court held that the sentence, while severe, was not manifestly excessive. It found that the sentence was proportionate to the seriousness of the offences and took into account the need for general deterrence. The appeal was therefore dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of four-and-a-half years imprisonment with a non-parole period of two years and ten months was upheld.

Orders