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Court of Criminal Appeal 14 December 2005

DBN v R

[2005] NSWCCA 435

Assault & violenceFraud & dishonestyTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SPECIAL CIRCUMSTANCES DIFFERENT SENTENCE IS NOT WARRANTED

Citation: DBN v R [2005] NSWCCA 435
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J

Background

The appellant (identified by initials to protect his identity) was sentenced in the District Court for nine offences across two indictments, with a further sixteen criminal acts taken into account on a Form 1. The offending included stealing a motor vehicle, an attempted ram-raid on a bank ATM using the stolen truck, malicious damage, robbery in company, aggravated stealing from the person, and multiple counts of stealing from the person.

The sentencing judge, Andrews ADCJ, imposed a total effective sentence of eight years with a non-parole period of six years, commencing 15 June 2003. The appellant sought leave to appeal against the sentences on the basis that the sentencing judge had made errors in applying the statutory aggravating factors framework under s 21A of the Crimes (Sentencing Procedure) Act.

  • Whether the sentencing judge erred by treating elements of the offences as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act, contrary to s 21A(2) (which prohibits double-counting)
  • Whether the sentencing judge erred in treating the appellant's prior convictions as an aggravating feature of the offences rather than limiting their relevance to subjective matters
  • Whether any identified sentencing errors warranted intervention by the Court of Criminal Appeal under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court accepted that the sentencing judge had made errors in applying s 21A. McClellan CJ at CL noted that Andrews ADCJ referred twice to the appellant's prior convictions in a way that suggested they were treated as an aggravating feature of the offences themselves. The current state of the authorities, as identified in R v Hathaway [2005] NSWCCA 368, is that prior convictions are relevant only to subjective matters, not as aggravating factors going to the objective gravity of the offending. McClellan CJ at CL noted, however, that this area may not be entirely settled and could require further examination in an appropriate case.

Despite these errors, the Court was not persuaded to intervene. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form the opinion that some other sentence, whether more or less severe, is warranted in law before it can interfere with a sentence, even where error has been identified. This principle, confirmed in R v Simpson (2001) 53 NSWLR 704, means that the mere existence of error is insufficient on its own.

Rothman J, with whom the other judges agreed, concluded that the errors in applying s 21A appeared to have had little or no effect on the sentence ultimately imposed. Given the number and seriousness of the offences, including a robbery in company in which a victim was separated from his five-month-old daughter, the total effective sentence was characterised as lenient rather than excessive. Reducing the non-parole period would, in Rothman J's opinion, produce a sentence that was unjustly low.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will not interfere with a sentence merely because error is identified; the Court must be affirmatively satisfied that a different sentence is warranted in law.
  • Section 21A(2) of the Crimes (Sentencing Procedure) Act prohibits a sentencing judge from treating elements of the offence as aggravating factors, and sentencing courts must carefully identify the elements of each offence before applying aggravating factors.
  • The Court of Criminal Appeal confirmed, following R v Hathaway, that prior convictions are relevant only to subjective matters at sentencing and should not be applied as aggravating factors going to the objective gravity of the offending, though McClellan CJ at CL flagged that the precise scope of this principle may warrant further examination.
  • No error was established as having materially affected the sentence where the overall penalty, assessed against the breadth and seriousness of the offending, was characterised as lenient rather than excessive.
  • In dismissing the appeal, the Court reinforced that a technically flawed sentencing process does not automatically produce an appealable result if the outcome falls within the appropriate sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), ss 21A, 21A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), ss 94, 95, 97(1), 112(2), 113(2), 154A, 195, 344A

Cases:
- R v Hathaway [2005] NSWCCA 368
- Veen v The Queen (No 2) (1988) 165 CLR 465
- R v Simpson (2001) 53 NSWLR 704
- R v Johnson [2004] NSWCCA 765
- R v Swan [2005] NSWCCA 252
- R v LWP [2003] NSWCCA 215