Dickman v The Queen [2017] VSCA 351 | Case summary

100 Relying on Nguyen,[46] the respondent submitted in writing that the applicant could not bring himself within the proposition that 'the evidence must demonstrate the true significance of facts in existence at the time of the sentence'. Counsel for the respondent also cited R v Smith,[47] R v Eliasen,[48] R v Rostom,[49] R v WEF,[50] R v Holland,[51] R v McLachlan,[52] R v SH[53] and R v Babic,[54] and submitted 'that the applicant cannot bring himself within any of the examples [in these cases], but more importantly, cannot bring himself within the confines of the relevant proposition' set out in Nguyen.

Court of Appeal (Vic)|2017-11-30|Before: Mr J, Whelan JA

For the reasons identified above, the marked disparity between the sentence imposed on Chaouk, and that imposed upon the applicant, is not justified by their differing roles in the overall offending, when proper regard is had to the other relevant factors that we have set out.
The applicant has made good the ground of appeal concerning parity. It is necessary to grant leave to appeal, allow the appeal and sentence the applicant afresh.

In further written submissions delivered following the Court's invitation made via the Registry on 26 October 2017, the applicant's counsel sought to rely on new evidence.
It is to be noted that the applicant went into custody on 30 October 2014, following his conviction by the jury, and was sentenced on 21 November 2014. He remained in custody until 28 November 2015, when he was released on bail following this Court's quashing of his convictions on 23 November 2015. The applicant remained at liberty until surrendering himself to the County Court on 26 June 2017 (the High Court having pronounced orders on 21 June 2017). He has been in custody since then.
The applicant relied on an affidavit sworn on 24 August 2017. With respect, it contains an account of the applicant's circumstances which is apparently restrained and objective. It sets out the difficulties encountered by the applicant in twice having to confront the process of entering into and adjusting to imprisonment, and twice having to confront the process of re-entering and re-adjusting to society. This is new evidence in the sense that none of these matters could have been anticipated by the judge when originally passing sentence.

Notwithstanding the respondent's submissions, it is, we think, legitimate to take into account the events that have occurred since the applicant's original conviction in the consideration of the present application.
In another context, when speaking of fresh evidence, in McIntee[55] King CJ observed:

The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

103 It would be to ignore the justice of the situation if we were to ignore what has occurred since the applicant was first sentenced. In Wei Tang,[56] the applicant had been convicted of, and imprisoned for, (then novel) slavery offences. On 29 June 2007, this Court, having upheld her appeal against her conviction, ordered that the convictions be quashed and that there be a retrial. The Director of Public Prosecutions appealed to the High Court, by special leave, from the decision, and on 28 August 2008, the High Court upheld the appeal, set aside the orders made by this Court and, in their place, ordered that Wei Tang's appeal to this Court against conviction be dismissed. Albeit that the Court upon remittal from the High Court found specific sentencing error, such that the sentencing discretion was re-opened, the Court (Maxwell P, Buchanan and Vincent JJA) observed:[57]

It requires little imagination to appreciate the emotional impact on a person in the applicant's position of the events which have occurred. None of this alters in the slightest the gravity of the slavery offences of which she has been convicted. But, through no fault of her own, the applicant has been subject to criminal trial processes for four years, much of that time being taken up in the necessary process of appellate examination of these novel provisions. The additional hardship which that has imposed on her must, as a matter of fairness, be taken into account in determining what is a just sentence to impose on her.

104 Given that the parity ground is, however, made out - and the sentencing discretion must be exercised afresh - it is unnecessary to consider the 'new evidence' ground any further.

105 There is little point in rehearsing at length the mitigating features of the case. The applicant, now aged 54 years,[58] has been gainfully employed throughout most of his adult life and has the support of his family. Prior to the instant offences, he had no history of violent offending. He has a number of medical conditions, including difficulties with his knees. There was inordinate delay in bringing the applicant's case to trial - the offence occurred in late September 2009, he first being spoken to by police on 16 February 2010, but was not convicted until 30 October 2014 - and the anxiety caused by the application for special leave, the appeal to the High Court, and awaiting judgment, coupled with his release and re-incarceration, must have been very difficult for him.

106 Taking all relevant matters into account, we would sentence the applicant to be imprisoned for six years on charge 1 (intentionally causing serious injury), and for 22 months on charge 3 (making a threat to kill). We would order that nine months of the sentence on charge 3 be served cumulatively with the sentence on charge 1, resulting in a total effective sentence of six years and nine months' imprisonment, and we would fix a non-parole period of four years and six months. It will be necessary to declare appropriate pre-sentence detention. Otherwise, we would confirm all other orders of the County Court.

[1] [2015] VSCA 311 ('Court of Appeal Reasons').

[3] This summary is drawn from the Sentencing Reasons of Judge Coish in relation to the applicant: DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 21 November 2014) ('Judge Coish Sentencing Reasons'), with some additions from the Sentencing Reasons of Judge Mullaly in relation to the co-offender, Ali Chaouk: DPP v Chaouk (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012 ) ('Judge Mullaly Sentencing Reasons').

[4] Chaouk's position within the group comes from Judge Mullaly Sentencing Reasons [5].

[5] Judge Coish Sentencing Reasons [6].

[6] Judge Mullaly Sentencing Reasons [15].

[7] Judge Coish Sentencing Reasons [8].

[8] Court of Appeal Reasons [47]-[55].

[9] Judge Coish Sentencing Reasons [22].

[10] Judge Coish Sentencing Reasons [29].

[11] Judge Coish Sentencing Reasons [33]-[35].

[12] Judge Mullaly Sentencing Reasons [5].

[20] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474 quoting Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609-10 (Gibbs CJ).

[22] McCloskey-Sharp v The Queen [2015] VSCA 87 [17].

[23] R v Piacentino; R v Ahmad [2007] VSCA 49; (2007) 15 VR 501. It is not necessary to consider the differences in view as to whether regard is to be had to the entire prior sentence or only to the unexpired portion required to be served as a result of the breach: see McCartney v R [2012] VSCA 268; (2012) 38 VR 1; Waugh v R (2012) 38 VR 66 and Koumis v R [2013] VSCA 47; (2013) 44 VR 193.

[24] Rehal v The Queen [2015] VSCA 81.

[26] R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332 and DPP v Afford [2017] VSCA 201.

[27] Crimes Act 1958, s 16. The maximum penalty is 20 years' imprisonment.

[28] Crimes Act 1958, s 20. The maximum penalty is 10 years' imprisonment.

[29] Charge 2, recklessly causing serious injury, was an alternative to the first charge. No verdict was taken on this charge.

[30] Priest JA and Croucher AJA, Whelan JA dissenting.

[31] Dickman v The Queen [2015] VSCA 311.

[33] See [106] below.

CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury and threat to kill - Whether sentence manifestly excessive - Parity - Co-offender convicted of recklessly cause serious injury, threat to kill and other offences - Co-offender had relevant criminal history - Appeal allowed - Resentencing - Delay - Fresh evidence - Additional hardship resulting from reinstatement of conviction - R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332 considered.

Dickman v The Queen

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Cases Cited (10)