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Court of Criminal Appeal 19 April 2000

R v Duma

[2000] NSWCCA 132

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Duma [2000] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 19 April 2000
Judge(s): Simpson J; Smart AJ

Background

The applicant, a young man of Polish background then aged 18 and 19 at the times of the respective offences, pleaded guilty to four charges: robbery with corporal violence (committed in a park at Hurstville in November 1997); aggravated robbery arising from a bank robbery at Dee Why in November 1998 involving almost $40,000 stolen and a customer knocked unconscious; being carried in a stolen vehicle; and assaulting a police officer during a high-speed chase and subsequent apprehension. Two common assault offences were also taken into account.

The District Court sentenced the applicant to an effective total of four years penal servitude, with a minimum term of three years. The applicant sought leave to appeal against all sentences, arguing the sentencing judge had fallen into error.

  • Whether the sentencing judge erred by failing to consider, or refer to, the possibility of varying the standard sentencing ratio between minimum and additional terms under s 5(2) of the Sentencing Act 1989.
  • Whether the circumstances of the case, particularly the applicant's rehabilitation prospects, justified a departure from the statutory ratio to allow for an extended period of post-release supervision.
  • Whether errors were established in the sentences imposed on the remaining counts.

Decision

Simpson J (with Smart AJ agreeing) identified one error in the sentencing process. The remarks on sentence contained no reference to the possible variation of the sentencing ratio contemplated by s 5(2) of the Sentencing Act 1989, which governs the balance between the minimum (non-parole) and additional terms of a sentence. Established authority holds that a failure to address this question at all can support an inference that it was overlooked entirely.

The Court found this was a case where relevant material bearing on that question existed, particularly the applicant's youth, his improving maturity since custody, strong family support, and the likelihood that he would benefit from extended supervision after release. While that material did not compel a variation of the ratio, it was sufficient to permit one. Simpson J concluded the question had not been considered, and this constituted a legal error in the sentencing exercise.

Resentencing was conducted under the Crimes (Sentencing Procedure) Act 1999. The Court found special circumstances existed justifying departure from the default statutory ratio, to allow for an extended parole period that would support the applicant's rehabilitation. The total head sentence of four years was maintained, but the non-parole period was reduced from three years to two years and six months. No error was found in the sentences imposed on the remaining counts, and the appeal against those sentences was dismissed.

Orders Made

  • Count 1 (aggravated robbery): Leave to appeal granted; appeal allowed; original sentence quashed; in substitution, imprisonment for four years with a non-parole period of two years and six months, commencing 12 March 1999. Earliest eligible parole date: 11 September 2001.
  • Remaining counts: Leave to appeal granted but appeals dismissed.

Key Takeaways

  • A sentencing court's failure to refer to, or consider, the possible variation of the minimum/additional term ratio under s 5(2) of the Sentencing Act 1989 can constitute legal error sufficient to warrant resentencing on appeal.
  • Where material relevant to the sentencing ratio exists, the sentencing judge must engage with the question, even if the material does not compel a departure from the standard ratio.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, "special circumstances" can justify reducing the non-parole period relative to the head sentence, including where an offender's rehabilitation is likely to require an extended period of post-release supervision and support.
  • The Court of Criminal Appeal maintained the same total head sentence of four years while adjusting the non-parole period, illustrating that error in the ratio analysis does not necessarily result in a reduction of the overall sentence.
  • Youth, genuine family support, demonstrated maturity in custody, and realistic rehabilitation prospects were among the factors the Court treated as relevant to the special circumstances assessment.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)