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Court of Criminal Appeal 14 August 2002

R v Dorsett

[2002] NSWCCA 326

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW & PROCEDURE SENTENCING ARMED ROBBERY MULTIPLE OFFENCES NECCESSITY DISCRETE SENTENCES.

Citation: R v Dorsett [2002] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 14 August 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant pleaded guilty in the District Court to six charges of armed robbery under s 97(1) of the Crimes Act 1900, with four further armed robbery charges and one charge of demanding money with menaces taken into account on a Form 1 (a document listing additional offences considered at sentencing without separate conviction). All offences were committed between 6 and 30 March 2000. The applicant, then aged 31, armed himself with a knife and threatened employees at various business premises to obtain cash, primarily to fund a heroin addiction.

Critically, the applicant committed these offences while on parole following an earlier District Court sentence for armed robbery and related matters. His criminal record dated back to 1982. The sentencing judge at first instance imposed 12 years imprisonment with a non-parole period of 8 years on each count, all running concurrently from the date of arrest.

The applicant sought leave to appeal against those sentences, raising several grounds including the starting point adopted, the discount applied for early guilty pleas, the length of the non-parole period, and the failure to impose discrete sentences for each offence.

  • Whether a notional starting sentence of 15 years (before discount) for this combination of offences was excessive
  • Whether the 20% discount applied for early guilty pleas was within the proper sentencing range
  • Whether the non-parole period of 8 years was manifestly excessive, having regard to special circumstances including the need for extended supervision on release
  • Whether the sentencing judge was required to impose discrete, individual sentences for each offence rather than a single concurrent sentence across all counts
  • Whether the applicant's drug addiction and personal history warranted greater leniency

Decision

The Court of Criminal Appeal found no error in the overall length of the total effective sentence. A 15-year notional starting point was not excessive given the six counts, the additional Form 1 matters, the applicant's prior record for similar offending, and the fact the offences were committed while on parole. The court noted that, had discrete sentences been imposed and then moderated by the totality principle, the combined result would not have been less than what was imposed.

On the guilty plea discount, the court found the 20% reduction was towards the higher end of the appropriate range under R v Thomson, particularly given the strength of the Crown case. In two instances the applicant was identified on video, and in another he was caught essentially in the act. The relevant question was not whether a greater discount "could have" been allowed, but whether the discount actually applied produced a manifestly excessive sentence. It did not.

The court also rejected the submission that a larger reduction in the non-parole period was warranted. Although the applicant's prospects of institutionalisation and his genuine prior efforts at rehabilitation were acknowledged, these were the very factors the sentencing judge had already considered in finding special circumstances. As to the drug addiction argument, the court was firm: addiction does not constitute a mitigating factor that reduces the gravity of armed robbery, and the court declined to treat it as such.

However, the Crown conceded that the sentencing judge had erred by failing to impose separate, discrete sentences for each offence as required by Pearce v The Queen (1998) 194 CLR 610. On that basis alone, leave to appeal was granted, the original sentences were quashed, and the applicant was re-sentenced. The total effective head sentence and non-parole period remained the same.

Orders Made

  • Leave to appeal granted
  • Original sentences quashed
  • Applicant re-sentenced as follows:
  • Counts 2 to 6: fixed terms of 4 years each, partly concurrent and partly cumulative, running from 4 April 2000 through to 3 April 2008 in staggered sequence
  • Count 1 (including Form 1 matters): 7 years imprisonment commencing 4 April 2005 and expiring 3 April 2012, with a non-parole period of 3 years commencing 4 April 2005
  • Earliest eligible parole date: 3 April 2008

Key Takeaways

  • Pearce v The Queen (1998) 194 CLR 610 requires sentencing courts to impose discrete sentences for each separate offence; a single concurrent sentence across multiple counts does not satisfy this obligation, even where the total effective term would be the same.
  • Where Form 1 matters are taken into account, the sentence on the principal count must give genuine recognition to the gravity of those additional offences, not merely acknowledge them in passing.
  • Drug addiction does not diminish the seriousness of armed robbery for sentencing purposes; the Court of Criminal Appeal declined to treat addiction as a mitigating factor reducing the need for deterrence, denunciation, and community protection.
  • The relevant appellate test is not whether the sentencing judge "could have" imposed a lesser sentence, but whether the sentence actually imposed was manifestly excessive. Arguments framed around the availability of a more lenient discretion, without more, will not succeed.
  • In assessing the totality of multiple sentences, a sentencing court may arrive at the same aggregate result through different structural approaches, provided each offence receives its own discrete sentence and the totality principle is then applied to moderate the cumulative effect.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (non-parole period requirement)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Harris [2001] NSWCCA 332
- R v Morgan (1993) 70 A Crim R 368
- R v Barton [2001] NSWCCA 63; 121 A Crim R 185
- R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
- Power v The Queen (1974) 131 CLR 623
- R v Simpson [2001] NSWCCA 534
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Lemene [2001] NSWCCA 5