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Court of Criminal Appeal 20 November 2003

R v Dang

[2003] NSWCCA 338

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY

Citation: R v Dang [2003] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 20 November 2003
Judge(s): Barr J; Miles AJ

Background

The appellant pleaded guilty in the Local Court to one count of robbery while armed with an offensive weapon, namely a knife, and was committed to the District Court for sentencing. The offence involved entering a Haymarket convenience store at 4:15am, threatening the store attendant at knifepoint, and stealing cigarettes, phone cards, a mobile phone and approximately $350 in cash. When pursued and eventually cornered by naval police and NSW Police officers, the appellant brandished the knife until an officer drew a pistol, at which point he dropped the weapon. He then resisted arrest and kicked one officer.

Taylor DCJ in the District Court sentenced the appellant to four years and six months imprisonment, with a non-parole period of two years and six months. His Honour noted the appellant was 20 years old, had no prior convictions, was a heroin addict who was under the influence at the time of the offence, had cooperated with police, and was genuinely remorseful with good prospects of rehabilitation. A 25 per cent discount was applied for the early guilty plea.

The appellant sought leave to appeal, arguing the sentencing judge had failed to apply the guideline judgments correctly and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred in applying the guideline judgments in R v Henry and R v Thompson; R v Houlton by failing to discount adequately for the early guilty plea
  • Whether the head sentence of four years and six months was manifestly excessive in all the circumstances

Decision

The appellant contended that the sentencing judge must have started with a head sentence of six years before applying the 25 per cent discount to arrive at the four year six month head sentence. A six-year starting point, he argued, sat outside the four-to-five year range indicated by R v Henry for armed robbery offences with the relevant features, and the mitigating factors present should have produced a sentence at the lower end of that range.

The Court rejected that reasoning. Barr J emphasised that the guideline in R v Henry is not a binding rule and does not operate as a mandatory starting point. A sentencing judge is not required to mechanically apply the guideline range in every case, and the failure to sentence within that range is not itself an error of law. What matters is whether the judge articulated reasons if departing from the guideline. His Honour had done precisely that, giving careful and detailed reasons.

On the question of drug use as a mitigating factor, Barr J agreed with the sentencing judge that the appellant's intoxication at the time of the offence did not reduce his criminality in the circumstances. The sentence fell within the proper range of the sentencing discretion, and no manifest excess was demonstrated.

Orders Made

  • Leave to appeal against the sentence granted
  • Appeal dismissed

Key Takeaways

  • A guideline judgment on sentencing, including the armed robbery range established in R v Henry, sets an indicative range rather than a binding rule; departure from it is not automatically a ground of appeal.
  • Where a sentencing court departs from a guideline, it is expected to articulate reasons, both to serve the public interest in consistency and to inform appellate review.
  • The Court of Criminal Appeal confirmed that the 25 per cent discount for a guilty plea under R v Thompson; R v Houlton represents the upper limit of the utilitarian range, with timing of the plea being the primary determinant of where the discount falls.
  • No error was established merely because a mathematical reconstruction of the head sentence suggested a starting point outside the guideline range, where the judge had provided thorough reasons for the sentence imposed.
  • Drug-affected state at the time of an offence does not automatically operate as a mitigating factor reducing an offender's criminality; that assessment remains a matter for the sentencing judge on the particular facts.

Legislation and Cases Referenced

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Jurisic (referenced within the passage quoted from R v Henry)
- R v De Havilland (1993) 5 Cr App R (S) 109 (UK, referenced in R v Henry)

Legislation: No specific legislation was cited in the judgment text.