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9
Court of Criminal Appeal 27 October 2000

R v Doorey

[2000] NSWCCA 456

Assault & violenceTheft & property

Citation: R v Doorey [2000] NSWCCA 456
Court: NSW Court of Criminal Appeal
Date: 27 October 2000
Judge(s): Wood CJ at CL; Whealy J

Background

The applicant pleaded guilty in the District Court to one count of attempted armed robbery under s 97(1) of the Crimes Act, which carries a maximum penalty of 20 years' imprisonment. The offence arose from an incident in May 1997, when the applicant, having been drinking at a backyard party, walked to a nearby service station with a concealed pocket knife, demanded the attendant open the cash register, and cut the telephone cord when she reached for the phone. The attendant fled, the applicant was unable to force open the till, and he returned to the party.

The applicant was spoken to by police that evening and gave a frank record of interview the following day, admitting the offence. He explained that, upon seeing the attendant's distress, he could not bring himself to proceed further. He was 25 years old at the time of sentencing, had a criminal history dating to 1991, and a longstanding history of alcohol and drug abuse.

District Court Judge Coolahan sentenced the applicant to four years' penal servitude, comprising a minimum term of two years and an additional term of two years. His Honour noted that five years would otherwise have been appropriate, but reduced the sentence and found special circumstances justifying departure from the standard ratio, having regard to the applicant's psychological difficulties, history of self-harm, and particular vulnerability within the prison system.

  • Whether the sentence of four years' penal servitude was manifestly excessive
  • Whether the sentencing judge failed to give sufficient weight to the applicant's intoxication at the time of the offence
  • Whether the applicant's subjective circumstances (including psychological disorder, history of self-harm, and prison vulnerabilities) were exceptional and warranted greater leniency
  • Whether there should have been a further adjustment to the ratio between the minimum and additional terms

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the approach taken by the sentencing judge. Wood CJ at CL held that the offence was objectively serious: it was committed at night against a lone and vulnerable victim, involved the production and use of a knife, and included deliberate acts such as cutting the telephone cord, all of which indicated a meaningful degree of seriousness despite the offence being one of attempt.

On the question of objective seriousness, the Court found that the fact the applicant abandoned the attempt, and that the till was never successfully opened, did not materially reduce the gravity of what occurred. The lack of any intention to physically harm the attendant was noted, but the Court observed this was common in such offences and did not substantially diminish the criminality involved. Similarly, the applicant's intoxication and motive to fund a habit were relevant to context but provided no excuse.

Regarding subjective circumstances, the Court was satisfied that Judge Coolahan had given appropriate and sufficient weight to the applicant's psychological disorder, vulnerability to depression, history of self-harm, and particular exposure to risk within the prison system (arising from resentment directed at him because of his father's history as a prison officer). These factors were reflected both in the reduction from the five-year starting point and in the finding of special circumstances.

The Court rejected the submission that the ratio between minimum and additional terms should have been adjusted further. Citing Morrissey, the Court noted that varying the statutory proportion requires consideration of whether the minimum term still appropriately reflects the criminality involved. Any further reduction to the minimum term would have failed to do so.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an offender's abandonment of an attempted robbery, and failure to obtain any proceeds, does not by itself reduce the objective seriousness of the offence to a level significantly below that of a completed attempt.
  • Intoxication at the time of an offence and a motive connected to drug or alcohol dependency are contextually relevant at sentencing but do not excuse the criminality involved, consistent with the Court's earlier guideline judgment in Henry (1999) 46 NSWLR 346.
  • A late guilty plea still carries utilitarian value and may attract a sentencing discount, even where a conviction was inevitable, provided the court is satisfied of the reasons for the delay (applying Thomson and Houlten [2000] NSWCCA 309).
  • Special circumstances justifying a departure from the standard minimum/additional term ratio can be established by reference to an offender's psychological vulnerability and particular exposure to risk in custody, but any resulting adjustment to the minimum term must still reflect the gravity of the offending.
  • Under the principle in Morrissey, varying the statutory ratio between minimum and additional terms requires the sentencing court to ensure the minimum term, even as reduced, remains proportionate to the criminality involved.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 97(1) (attempted armed robbery)

Cases
- R v Henry (1999) 46 NSWLR 346 (CCA guideline judgment on armed robbery sentencing)
- R v Thomson and Houlten [2000] NSWCCA 309 (utilitarian value of a guilty plea)
- R v Rushby (1977) 1 NSWLR 594 (sentencing must reflect criminality involved)
- R v Morrissey NSWCCA, 15 July 1994 (principles on varying minimum/additional term ratio)