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Court of Criminal Appeal 13 August 2003

R v Dunn

[2003] NSWCCA 169

Theft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEALS INADEQUATE SENTENCES MITIGATION OF SENTENCE

Citation: R v Dunn [2003] NSWCCA 169
Court: New South Wales Court of Criminal Appeal
Date: 13 August 2003
Judge(s): Meagher ACJ, Dowd J, Barr J

Background

The respondent, a young man aged twenty at the time, participated in a planned armed bank robbery in May 2000. He and accomplices stole a motor vehicle, used it to ram the doors of a bank branch, and took nearly $40,000 in cash while threatening staff. He was also charged with firearms offences arising from separate events in September 2001.

At sentencing in the District Court, the respondent received a head sentence of 3 years and 9 months for the May 2000 offences and 6 years for the September 2001 firearms offences. In reaching those sentences, the trial judge took into account the respondent's diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), treating it as a basis to reduce the weight given to general deterrence, even though his Honour had found the condition bore no connection to the commission of the offences.

The Crown appealed to the Court of Criminal Appeal on the ground that both sets of sentences were manifestly inadequate.

  • Whether the original sentences were manifestly inadequate so as to warrant appellate intervention, even where the sentencing judge made no error of fact or law
  • Whether the principles reducing the weight of general deterrence for offenders with mental illness or severe intellectual deficit (as established in R v Scognamiglio and R v Letteri) apply to an offender of average intelligence diagnosed with ADHD
  • Whether R v Murchie, a two-judge Court of Criminal Appeal decision, established that ADHD generally attracts those mitigation principles

Decision

Meagher ACJ, with Dowd and Barr JJ agreeing, held that the original sentences were inadequate. Despite the trial judge having made no error of fact or law, the Court found the outcome so far removed from what was appropriate, and so poorly suited to deterring this category of serious offending, that intervention was justified. Meagher ACJ described the original non-parole period of two years and head sentence of less than four years for the bank robbery as "ridiculous" in light of the gravity of the offending and the absence of any meaningful subjective mitigating factors.

Barr J delivered a separate judgment specifically addressing the ADHD issue. He found that the established principle reducing the weight of general deterrence, developed for offenders with mental illness or severe intellectual deficit, does not extend to persons who are impulsive and reckless but of average intelligence. ADHD, as presented in this case, did not satisfy the threshold for that principle.

Barr J also considered the two-judge decision in R v Murchie, which the sentencing judge had relied on. He held that judgments from benches of only two judges of the Court of Criminal Appeal do not establish new matters of principle, and R v Murchie should not be read as authority that ADHD generally attracts the deterrence-reduction principle. On the facts, the respondent was not entitled to any mitigation of sentence on the basis of his ADHD diagnosis.

The Court resentenced the respondent, increasing both the head sentences and the non-parole periods across the relevant charges. The overall result was a head sentence of 10 years and an overall non-parole period of 6 years and 9 months, with the sentencing structure accommodating the need for an extended parole period.

Orders Made

  • For the May 2000 offences: sentence set aside and replaced with 5 years imprisonment, commencing 21 July 2001 and expiring 20 July 2006
  • For the September 2001 firearms offences:
  • On the section 51(1A) offence: 7 years imprisonment commencing 21 July 2004 and expiring 20 July 2011, with a non-parole period of 3 years and 9 months commencing 21 July 2004 and expiring 20 April 2008
  • On the section 51(1) offence: 2 years and 3 months imprisonment commencing 21 July 2004 and expiring 20 October 2006, with no separate non-parole period

Key Takeaways

  • A sentence may be set aside as manifestly inadequate even where the sentencing judge committed no identifiable error of fact or law, provided the result is sufficiently departure from what the circumstances warranted.
  • The principles in R v Scognamiglio and R v Letteri, which reduce the weight given to general deterrence for offenders with mental illness or severe intellectual deficit, are not applicable to offenders of average intelligence who exhibit impulsive or reckless behaviour.
  • As a general rule, the Court of Criminal Appeal held that ADHD does not attract the operation of those deterrence-reduction principles.
  • Decisions of the Court of Criminal Appeal constituted by only two judges do not promulgate new matters of principle; R v Murchie was accordingly not treated as authority for a broader proposition about ADHD and sentencing.
  • Where a diagnosed condition is found by the sentencing judge to have had no causal connection to the offending, its relevance to mitigation is significantly diminished.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 117, 154A
- Firearms Act 1996 (NSW), ss 5(1), 51(1), 51(1A)
- Criminal Appeal Act 1912 (NSW), ss 5D, 53
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Letteri (NSWCCA, 18 March 1992, unreported)
- R v Murchie [1999] NSWCCA 424