R v Downing [1998] VSCA 122

Court of Appeal (Vic)|1998-11-24|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

Criminal law - Sentencing - "Affray" - Sentence of 10 months imposed upon applicant neither manifestly excessive nor manifestly disparate from sentences imposed upon co-offenders.

The Applicant was not in attendance and was not represented by Counsel.

On 30 June 1998 the applicant, Mark Anthony Downing, was sentenced in the County Court to 10 months' imprisonment for his part in an unlawful affray. The affray occurred on 20 November 1997 at the premises of one Roger Marriage in Korong Vale.

The facts which led to the affray have been fully set out in the judge's sentencing remarks and need not be re-stated in full, save to say that the applicant was alleged to have joined with his father and two other persons for the purposes of "settling a score" which his father had with a man called Soltan, who happened to be at the Marriage premises in company with other people. The perpetrators of the affray carried with them a number of weapons and severe injuries were inflicted upon Soltan. There was evidence from which the learned judge was entitled to conclude that the applicant was armed with one of these weapons. The attack was clearly frightening to its victims.

On 30 June, following a plea of guilty, the learned judge sentenced all the offenders to various terms of imprisonment. The applicant was sentenced to 10 months' imprisonment, his father to 12 months' imprisonment and the other two perpetrators to eight and six months respectively.

The applicant has appealed on the ground that the sentence imposed upon him is, amongst other things, manifestly excessive and manifestly disparate to the sentence imposed particularly upon the offenders who received slightly lesser sentences. The applicant, as is his right under the Crimes Act and the Criminal Appeals Rules, has not attended upon this hearing of the application but has submitted written submissions which he has asked this Court to take into consideration on his behalf. We have done so.

Those submissions place emphasis upon the disparity of the sentence which he received, particularly having regard to what he contends is his lack of prior convictions for crimes of violence. He also stressed that his role in the offence was less than the other offenders' because he had done his best to bring the affray to an end. He does, however, concede that he did "deserve some term of imprisonment", but that it should have been in line with the two offenders Disher and Donald, who received sentences of eight months and six months respectively.

We have looked carefully at the reasons for sentence of his Honour, and we have heard from Mr Elston on behalf of the Crown, who has responded to our request with his usual commendable fairness. We are not persuaded that the sentence imposed on the applicant is manifestly excessive, or that it is so disparate from the sentences imposed on the co-offenders as to give rise, either in the applicant or an objective bystander, to what is called a legitimate sense of grievance, as the term is used in the authorities. It is apparent from his Honour's reasons that he found that the applicant had willingly joined his father and the other co-offenders in the enterprise and had used a weapon. Although it might be said in one sense that he had called a halt to the affray, it seems that that was induced, as his Honour was entitled to find, by a knowledge that the arrival of the police was imminent.

All the participants, including the applicant, had significant prior convictions, although it is true, as he says, that his previous criminal history does not show a propensity for violent acts. However, he has many prior convictions for offences of dishonesty, drug possession, driving and related offences.

We are not persuaded that the sentencing judge has erred in imposing the sentence which he did. It was clearly within the range of penalties open, and indeed in our view was merciful.

The application for leave to appeal against sentence is accordingly dismissed.

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