R v Dupuy - [2008] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 186 of 2007

THE QUEEN
	v
JUSTIN DUPUY

---

JUDGES:	BUCHANAN and ASHLEY JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2008
DATE OF JUDGMENT:	24 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 63

---

CRIMINAL LAW – Appeal against total effective sentence of four years imprisonment with non-parole period of two years for offences of making explosives under suspicious circumstances and acting with intent to cause an explosion of a nature likely to endanger life or cause serious injury to property – Whether appellant’s mental condition reduced his moral culpability for offending – Whether sentence manifestly excessive – Appeal dismissed.

R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Paul Vale Criminal Law

BUCHANAN JA:

In my opinion the appeal should be dismissed for the reasons stated by Ashley JA.

ASHLEY JA:

Justin Dupuy pleaded guilty in the County Court to the following offences:

· Making explosives under suspicious circumstances (count 1).[1]

· Acting with intent to cause an explosion of a nature likely to endanger life or cause serious injury to property (count 2).[2]

[1]Crimes Act 1958 (Vic) , s 317(3), maximum penalty five years’ imprisonment.

[2]Crimes Act, s 317(4), maximum penalty ten years’ imprisonment.

The offences were committed, respectively, on 2 September 2006 and on the night of 2-3 September.

Mr Dupuy was charged and remanded in custody on 6 September 2006.

On 15 June 2007, on a plea of guilty, he was sentenced as follows:

· On count 1 – to be imprisoned for 20 months

· On count 2 – to be imprisoned for 42 months

The learned sentencing judge ordered that six months of the sentence on count 1 be cumulated on the sentence passed on count 2. So the total effective sentence was four years’ imprisonment.

His Honour fixed a non-parole period of two years. He also made a declaration in respect of pre-sentence detention,[3] and made certain ancillary orders.
[3]It was 283 days.

Now pursuant to grant of leave, the prisoner appeals against sentence. He relies upon the following grounds –

1.The learned sentencing judge erred by failing to give sufficient weight to the evidence of the appellant’s mental condition.
2.The learned sentencing judge erred by failing to have proper regard to the appellant’s prospects of rehabilitation.
3.The learned sentencing judge imposed sentences that are manifestly excessive in all the circumstances including:
(a)the appellant’s lack of similar prior conviction and subsequent offending;
(b)the appellant’s state of mental health;
(c)the circumstances of the appellant’s offending;
(d)the appellant’s history of drug and alcohol abuse and the fact that the appellant was under the influence of drugs and alcohol at the time of the offending;
(e)the appellant’s early plea of guilty;
(f)the appellant’s prospects of rehabilitation; and,
(g)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 Dupuy

Details

AGLC: R v Dupuy [2008] VSCA 63
Case: [2008] VSCA 63
Decision Date: 24 April 2008

CaseChat Overview and Summary

The appellant, Dupuy, appealed against the total effective sentence of four years imprisonment with a non-parole period of two years, imposed for making explosives under suspicious circumstances and acting with intent to cause an explosion of a nature likely to endanger life or cause serious injury to property. The appeal was heard in the Court of Appeal, which needed to determine whether Dupuy's mental condition reduced his moral culpability and whether the sentence was manifestly excessive. The court considered the cases of R v Tsiaras and R v Verdins to guide its reasoning.

The court examined Dupuy's mental condition and its impact on his moral culpability for the offences. The evidence presented indicated that Dupuy had a history of mental health issues, which could have influenced his actions. However, the court found that these issues did not significantly reduce his moral culpability, as Dupuy was still capable of understanding the consequences of his actions. The court also considered the nature and circumstances of the offences, which involved the creation of explosives with the intent to cause serious harm. The court concluded that Dupuy's mental condition, while relevant, did not outweigh the seriousness of the offences.

In assessing whether the sentence was manifestly excessive, the court considered the totality principle, which requires that the totality of the sentence should be proportionate to the seriousness of the offending. The court found that the sentence imposed was appropriate given the nature and circumstances of the offences. The court also noted that the sentence reflected the need to protect the community from the potential harm that could have resulted from Dupuy's actions. The appeal was dismissed, and the original sentence was upheld.

The court made no further orders.

Orders