R v Dowie [1989] TASSC 44

R v Dowie [1989] TASSC 44 - TASSC 1989 case summary — Zoe

[32]

'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] HCA 51; (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] HCA 42; (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."

[70]

"At approximately 10.15pm the complainant, Mr Ashley Hallam, was at his home at Farrell's Road Reedy Marsh. He was there watching television when he heard a car approach his house and heard knocking on the front door. He answered the door to a person known to him who was at the door pointing a shot gun towards him. ... At that time that the accused pointed the shot gun at Mr Hallam, he stated, 'I'm going to kill you' and he took three paces towards Mr Hallam pushing the end of the barrel into his stomach. Mr Hallam stated, 'What are you doing' and the accused yelled out, 'Sit down'. The accused then pointed the gun at the right side of Mr Hallam's forehead. At that time the accused was approximately half a metre away from Mr Hallam. The accused then said, 'I am going to kill you. You ripped me off you bastard.' Mr Hallam replied, 'I did not I don't know what you're talking about'. The accused then said 'Don't lie to me, you cunt' and pushed the barrel into his right cheek, near his eye. Mr Hallam said, 'Please, don't shoot me.' The accused then demanded a whisky and Mr Hallam got a bottle of Bacardi. At that time the accused hit Mr Hallam on the head with the barrel of the gun and said 'Crouch down.' The complainant then did so, crouched down and said, 'Please I don't want to die' and the accused prodded Mr Hallam in the head and neck with the barrel of the gun. At that time Mr Hallam was in a crouched position on his knees.

The prisoner then said, 'Don't give me that bullshit, you ripped me off for fifteen grand.' Mr Hallam said, 'Please Rod I don't know anything about it.' Dowie screamed 'Liar' and discharged the shotgun. The shot went through the kitchen window which was opened. He then pushed the hot barrel into the left side of Mr Hallam's neck, which caused a small, circular skin abrasion to his neck.

Mr Hallam again pleaded and as he did so the accused increased the pressure on the barrel, pushing the barrel into Mr Hallam's neck. There was more conversation between the accused and Mr Hallam. The accused abusing Mr Hallam, and accusing him of ripping him off. Mr Hallam again pleading and stating he knew nothing about it. The accused demanded a whisky and Mr Hallam obtained that for him. The accused then hit him around both sides of the head with the gun and told Mr Hallam to lie down on the floor and put his hand (inaudible). Mr Hallam again asked the accused not to kill him and knelt on the floor with his hands flat on the floor. The accused demanded to know who did it, and Mr Hallam said, 'If I knew I would tell you.' The accused said, 'Don't lie' and pushed the barrel of the gun into his cheek near his eye and kept the pressure on the barrel and said, 'If you don't tell me, you're a dead man.' The complainant stating, 'Honestly, I don't know.'

The accused then stepped backwards and fired the gun into the wall to the left of the complainant and then moved the barrel and pointed it straight at Mr Hallam's head, approximately four inches from his head, and said, 'Right, this one's for you.' He reloaded the shotgun with a cartridge from his pocket and pointed the gun into the complainant's left cheek and said 'Tell me who did it.' The complainant said, 'Please believe me, I don't know.' The accused pushed the barrel hard into his cheek and said, 'You're lying' and moved the barrel from his cheek to near his left ear. After that the accused then discharged the shotgun out of the kitchen window when the barrel was approximately six inches from the complainant's left ear.

The complainant in his statement, describes himself as shaking uncontrollably at that time. The accused then demanded another drink, and then pushed the gun into the left side of the complainant's neck and said, 'Stay still, your time is up.' Mr Hallam responded, 'What do I have to do to make you believe me?' The accused said, 'You liar, if one more plant is missing, you're dead, no questions asked.' The accused jabbed Mr Hallam in the chest with the end of the barrel and said, 'Anything else happens and it's instant death.' And he then backed out of the lounge room saying, 'If anything at all happens, you'll be dead, no worries.'

The accused went out of the front door and as he left he pointed the barrel then through the kitchen window from outside the house."

[78]

43 At approximately 10.15pm that day Mr Ashley Hallam was at his home at Farrell's Road, Reedy Marsh. He was watching a television programme when he heard a car approaching the house and, soon after, knocking on the front door. He answered the door, and found the respondent standing there, pointing a shot gun towards him. The gun was loaded at the time. The respondent said, "I'm going to kill you". He took three paces towards Mr Hallam and pushed the muzzle of the gun into his stomach. Mr Hallam asked, "What are you doing?", and the respondent yelled out, "Sit down!". He then pointed the gun at the right side of Mr Hallam's forehead. He said, "I'm going to kill you. You ripped me off you bastard." Mr Hallam replied, "I did not I don't know what you're talking about." The respondent then said, "Don't lie to me you cunt", and pushed the barrel of the gun against Mr Hallam's right cheek. Mr Hallam pleaded, "Please don't shoot me". The respondent demanded whisky and Mr Hallam supplied him with some liquor. The respondent then hit Mr Hallam on the head with the barrel of the gun and said, "Crouch down". The blow on the head was apparently not a forceful blow. Mr Hallam did as he was told and said, "Please I don't want to die". The respondent then prodded Mr Hallam in the head and neck with the barrel of the gun. At that time Mr Hallam was in a crouched position on his knees. The respondent said, "Don't give me that bullshit, you ripped me off for fifteen grand". Mr Hallam said, "Please Rod I don't know anything about it". The respondent screamed, "Liar" and then discharged the shotgun. The shot went through the kitchen window which was open. The respondent then pushed the hot barrel of the gun into the left side of Mr Hallam's neck causing a small circular skin abrasion. Mr Hallam again pleaded for his life and as he did so, the respondent increased the pressure on the barrel, forcing the muzzle into Mr Hallam's neck. There was further dialogue between the respondent and Mr Hallam, the respondent abusing Mr Hallam and accusing him of "ripping him off" and Mr Hallam continuing to deny any knowledge of the matter being referred to by the respondent. The respondent demanded another whisky and that was obtained for him. The respondent then assaulted Mr Hallam by striking him around both sides of the head with the gun. These were not heavy blows. He then told Mr Hallam to lie down on the floor and to put his arms out. Mr Hallam again begged the respondent not to kill him and knelt on the floor with his hands flat on the floor. The respondent demanded to know, "Who did it?", and Mr Hallam said, "If I knew I would tell you". The respondent said, "Don't lie", and pushed the barrel of the gun into Mr Hallam's cheek near his eye. Keeping the pressure on the barrel, he said, "If you don't tell me, you're a dead man". Mr Hallam said, "Honestly, I don't know". The respondent then stepped backwards and fired the gun into the wall to the left of Mr Hallam and then moved the barrel around so that it pointed straight at Mr Hallam's head, a few inches away from his head. The respondent then said, "Right this one's for you". He reloaded the shot gun with a cartridge from his pocket and pointed the gun into Mr Hallam's cheek and said, "Tell me who did it". Mr Hallam said, "Please believe me, I don't know". The respondent pushed the barrel hard into Mr Hallam's cheek and said, "You're lying", and moved the barrel from his cheek to near his left ear. The respondent again discharged the shot gun out the kitchen window at which time the barrel of the gun was only a short distance from Mr Hallam's ear. Mr Hallam was shaking uncontrollably at this time. The respondent demanded another drink and pushed the gun into the left side of Mr Hallam's neck saying, "Stay still your time is up". Mr Hallam responded, "What do I have to do to make you believe me". The respondent said, "You liar, if one more plant is missing you're dead no questions asked". The respondent then jabbed Mr Hallam in the chest with the end of the barrel and said, "Anything else happens and it's instant death". He then backed out of the lounge room saying, "If anything at all happens you're dead, no worries". The respondent then left the house through the front door and as he walked away he pointed the barrel through the kitchen window from outside the house.

[101]

61 For my part I have considerable difficulty with the notion that to enable sentencing consistency, which is of course one of the primary aims of a sentencing judge, (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at pp610-611 per Mason J), the parameters apparently indicated by sentences actually imposed in previous cases for similar crimes, constitute some sort of a framework within which the impending sentence must fit or be seen to be manifestly inadequate or excessive, as the case may be. I subscribe to the view enunciated by Adam and Crockett JJ in R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at p299, where they accepted that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance. This view is not inconsistent with the approach taken by the Court in Lovegrove v The Queen [1961] Tas SR p106, and The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Rather, it places emphasis upon the fact that conduct giving rise to liability for prosecution and conviction for a particular crime, may vary greatly in its seriousness if proper account is taken of all the circumstances, including those of the offender and his victim, (if any) and the public interest. For these reasons I find the so called "tariff" approach to sentencing of little value, particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable. A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see Tracey & Ors v The Queen 38/1987), but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances. Indeed, in some cases the very multiplicity of the examples placed before it may convince the court that the offence has become one of great prevalence in respect of which lenient sentences have had an inadequately deterrent effect.

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