Citation: R v DF [2005] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 22 July 2005
Judge(s): Buddin J, Brownie AJA, Latham J
Background
The applicant was 17 years old when he participated, with four co-offenders, in a violent robbery and kidnapping of a victim in a carpark. The offending involved following the victim in a stolen vehicle, using a knife and steel pole to rob him, forcing him into his own car, extracting his bank PIN under threat, and physically assaulting him when he attempted to escape. The applicant personally punched the victim at least six times with a closed fist, causing substantial bruising.
The applicant had pleaded guilty in the Children's Court and maintained those pleas in the District Court, where he was sentenced at age 18. The sentencing judge imposed 5 years imprisonment with a 2.5-year non-parole period for specially aggravated kidnapping, and a fully concurrent 4-year sentence with a 2.5-year non-parole period for armed robbery. Both sentences were to be served in a juvenile detention centre.
The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were excessive, arguing the sentencing judge had given insufficient weight to his youth, his prospects of rehabilitation, and the discount owed for his early guilty pleas.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicant's youth as a mitigating factor
- Whether the sentencing judge gave adequate weight to the applicant's prospects of rehabilitation
- Whether the discount applied for the guilty pleas was adequate and properly quantified in accordance with the principles in R v Thomson and Houlton
- Whether attendance at a residential drug rehabilitation program prior to sentencing (unrelated to the present offences) warranted additional weight as a form of quasi-custody
- Whether the sentences were manifestly excessive in all the circumstances
- Whether a technical error in the form of the sentences required correction under s 44 of the Crimes (Sentencing Procedure) Act 1999
Decision
The Court rejected all grounds directed at substantive severity. The sentencing judge was found to have properly acknowledged the applicant's youth and the weight it carried, but was entitled to balance that against the significant objective gravity of offences carrying maximum penalties of 25 and 20 years respectively. The applicant's prior criminal record, which had begun at age 13 and included multiple violence offences, and the fact that he was on parole and in breach of a bond at the time of the offending, were legitimately weighty factors.
On the plea discount question, the Court found the sentencing judge had referred to the applicable principles from R v Thomson and Houlton and applied a discount. The applicant's complaint was not that no discount was given, but that it was insufficiently large. The Court found no error in the approach taken.
The Court also dismissed the argument that participation in a residential drug rehabilitation program should have attracted greater weight as quasi-custody. That program had been attended as a condition of bail on unrelated matters dealt with in the Youth Drug Court, not as a condition of bail in the present proceedings. That distinction meant it warranted little weight in the current sentencing exercise.
The appeal succeeded only on a technical ground: the sentences as originally structured did not comply with the requirements of s 44 of the Crimes (Sentencing Procedure) Act 1999. Following the approach in R v Cramp, the Court corrected the form of the orders without otherwise disturbing the exercise of the sentencing discretion.
Orders Made
- Leave to appeal granted
- Appeals allowed, but only to the extent of correcting the sentences to conform with s 44 of the Crimes (Sentencing Procedure) Act 1999
- Specially aggravated kidnapping: non-parole period of 2.5 years commencing 22 July 2004, expiring 21 January 2007; total sentence of 5 years expiring 21 July 2009
- Robbery whilst armed: non-parole period of 2.5 years commencing 22 July 2004, expiring 21 January 2007; total sentence of 4 years expiring 21 July 2008
- The applicant became eligible for parole on 21 January 2007
Key Takeaways
- A sentencing court is entitled to give limited weight to youth and rehabilitation prospects where the objective gravity of the offending is high and the offender has a substantial prior record, including prior violent offending.
- Under the principles in R v Thomson and Houlton, a sentencing court must apply a discount for early guilty pleas, but the weight of that discount remains a matter of discretion informed by the particular circumstances; an appellate court will not intervene simply because a different quantum was arguable.
- Participation in a residential drug rehabilitation program qualifies for consideration as quasi-custody only where that participation was a condition of bail in connection with the offences for which the offender is being sentenced; attendance linked to unrelated proceedings attracts little, if any, weight.
- A technical failure to structure a sentence in conformity with s 44 of the Crimes (Sentencing Procedure) Act 1999 will warrant correction on appeal, but the Court of Criminal Appeal confirmed in reliance on R v Cramp that such an error does not, of itself, mean the sentencing discretion miscarried.
- No issue of parity arose in this matter, notwithstanding that most co-offenders had been sentenced before the applicant, as the sentences imposed on those co-offenders made a parity challenge untenable.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- R v Cramp [2004] NSWCCA 264
- R v Thomson and Houlton (2000) 49 NSWLR 383