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11
Court of Criminal Appeal 18 July 2005

DM v R

[2005] NSWCCA 181

Assault & violenceTheft & property
ROBBERY IN COMPANY WITH WOUNDING ROBBERY IN COMPANY DETAIN PLEAS OF GUILTY OFFENCES TAKEN INTO ACCOUNT APPLICANT ON CONDITIONAL LIBERTY

Citation: DM v R [2005] NSWCCA 181
Court: New South Wales Court of Criminal Appeal
Date: 18 July 2005
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant, a youthful offender, was sentenced in the District Court on four serious charges arising from a series of offences committed in early 2003. The charges included robbery in company with wounding, two counts of detaining a person in company with intent to obtain advantage, and robbery in company. The applicant had pleaded guilty to all four charges, and a further twelve offences were taken into account on a Form 1 schedule.

The first offence, committed on 10 January 2003, involved a violent robbery in which the victim suffered severe bruising to his kidneys, blood in his urine, and lasting physical and psychological harm. Subsequent offences were committed in June 2003. Critically, at the time of all the offences, the applicant was subject to conditional liberty arising from earlier criminal conduct, including good behaviour bonds and control orders.

The sentencing judge, Delaney DCJ, imposed a combination of fixed-term and non-parole sentences, partially accumulated. The applicant sought leave to appeal on the basis that the overall sentence was manifestly excessive, and that the partial accumulation and the non-parole period for the first count were excessive in light of his youth and prospects for rehabilitation.

  • Whether the sentencing judge erred in partially accumulating the sentences for the four discrete offences
  • Whether the overall sentence was manifestly excessive, having regard to the applicant's youth and subjective circumstances
  • Whether special circumstances existed justifying departure from the standard statutory ratio between the non-parole period and the balance of term
  • Whether the non-parole period imposed for the first count (robbery in company with wounding) was appropriate

Decision

The Court of Criminal Appeal granted leave to appeal but allowed the appeal only in part. The Court confirmed that the four offences were discrete and that some degree of sentence accumulation was appropriate. As Hulme J observed, considerations of general deterrence, personal deterrence, and retribution require that courts make clear an offender cannot commit further serious offences with impunity simply because one serious offence is already being punished.

On the question of special circumstances, the Court accepted that the applicant's youth, the accumulation of sentences, and the need to promote rehabilitation collectively justified a departure from the standard statutory proportion between the head sentence and the non-parole period. These factors warranted a longer balance of term to support the applicant's prospects of rehabilitation following release.

The Court declined to interfere with the sentences imposed for the second, third, and fourth counts, or their commencement dates. However, it found the non-parole period of three years for the first count to be excessive and reduced it to two years, while leaving the head sentence of five years and three months unchanged.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The sentence for the first count (robbery in company with wounding, committed 10 January 2003) was quashed and replaced with imprisonment for five years and three months, commencing 25 June 2004 and expiring 24 September 2009, with a non-parole period of two years expiring 24 June 2006
  • Sentences for the remaining three counts were undisturbed

Key Takeaways

  • Discrete serious offences committed in a series call for discrete sentences, and some degree of accumulation is appropriate even for youthful offenders, particularly where each offence targeted a different victim.
  • A sentencing court may depart from the standard statutory ratio between the non-parole period and the balance of term where special circumstances exist, including the youth of the offender, the accumulation of sentences, and the importance of promoting rehabilitation upon release.
  • The Court of Criminal Appeal confirmed that being on conditional liberty at the time of offending is a significant aggravating factor, relevant across all charges including those taken into account.
  • Reducing a non-parole period to reflect rehabilitation prospects does not require a corresponding reduction in the head sentence; the Court here preserved the full head sentence of five years and three months while reducing only the non-parole period.
  • Under s 44 and s 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge may decline to set a non-parole period for fixed-term sentences, and a failure to give reasons for that course does not invalidate the sentences pursuant to s 45(4).

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, ss 44, 45

Cases:
- R v JDB [2005] NSWCCA 102
- R v Hearne (2001) 124 A Crim R 451
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- R v GDP (1991) 53 A Crim R 112
- Veen v R (No 2) (1988) 164 CLR 465