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Court of Criminal Appeal 22 September 2006

DRINAN v REGINA

[2006] NSWCCA 303

Assault & violenceTheft & property
CRIMINAL LAW APPEALS WHETHER USE OF STANDARD NON PAROLE PERIOD WAS INAPPROPRIATE PARITY WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Drinan v Regina [2006] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 22 September 2006
Judge(s): Spigelman CJ, Hoeben J, Rothman J (Rothman J delivering the principal judgment)

Background

The appellant was sentenced in the District Court by Finnane DCJ following guilty pleas to three offences: malicious damage, common assault, and aggravated break, enter and commit a serious indictable offence. All offences arose from a dispute over a stolen puppy. The appellant and a co-offender believed the victim had stolen the dog and undertook two separate incidents of confrontation and violence across several days in August 2004.

The most serious incident occurred when the appellant and his co-offender, both heavily intoxicated, broke into the victim's home late at night. The victim, a man with a mild intellectual disability, was found lying on a mattress. Both men assaulted him severely: the appellant struck him more than ten times with a wooden pick handle while the co-offender kicked and stomped on his head. The victim was left injured without assistance and was hospitalised the following day with a badly broken jaw, severe bruising, and injuries requiring surgical insertion of plates.

For the first two offences the appellant received section 9 bonds. For the aggravated break and enter he received a non-parole period of two years and six months with a total term of six years. He sought leave to appeal and, if granted, sought lesser sentences.

  • Whether the sentencing judge incorrectly used the standard non-parole period as a starting point, rather than as a guidepost, when crafting the sentence for the aggravated break and enter offence
  • Whether the sentencing judge failed to give adequate consideration to parity between the appellant and his co-offender, Mr Stender, who received the same effective sentence
  • Whether the sentence for the aggravated break and enter offence was manifestly excessive

Decision

Ground One: Use of the standard non-parole period. The Court found that the appellant's argument focused on isolated words from the sentencing judge's remarks taken out of context. Reading the sentencing remarks as a whole, Finnane DCJ had correctly identified the standard non-parole period as one guidepost and the maximum penalty as another, and had not treated the standard non-parole period as a mandatory starting point. The sentencing judge expressly noted that, because the appellant had pleaded guilty, he was not obliged to impose the standard non-parole period. No error was established.

Ground Two: Parity. The co-offender Mr Stender received the same effective sentence. The Court found that Finnane DCJ had assessed the objective seriousness of both offenders' conduct as comparable. Although there were some differences in subjective circumstances (the appellant faced three charges to the co-offender's two, and the co-offender had a prior section 12 bond from Queensland), the sentencing judge's view that these differences did not warrant disparate sentences was one open to him. The Court held there was no justified sense of unfair treatment arising from the comparable sentences.

Ground Three: Manifest excess. The Court described the aggravated break and enter as an "extremely serious and violent offence." While worse cases could theoretically be imagined, the Court observed that a worse version of this offence would likely have resulted in additional serious charges. The Court found that the sentencing judge had taken all relevant subjective circumstances into account, including a finding of special circumstances justifying a shorter non-parole period than the statutory default. A non-parole period of less than two and a half years would have been inadequate. No manifest excess was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the standard non-parole period operates as a guidepost rather than a mandatory starting point, and that sentencing remarks must be read as a whole rather than in isolated excerpts.
  • Where a sentencing judge explicitly acknowledges that a guilty plea removes any obligation to impose the standard non-parole period, and then proceeds to weigh all relevant factors, no error in methodology will ordinarily be found.
  • Parity between co-offenders does not require identical subjective circumstances; comparable sentences are justified where the sentencing court finds the objective seriousness of each offender's conduct to be equivalent.
  • A difference in the number of charges between co-offenders does not automatically warrant disparate sentences where the sentencing judge has turned their mind to that distinction and found it insufficient to justify a different outcome.
  • Upholding the sentence, the Court emphasised that a non-parole period of two years and six months for a particularly violent home invasion involving repeated blows with a weapon to a vulnerable victim was not excessive, even with subjective factors weighed in the offender's favour.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including sections 3A, 9, 12, 21A, 22, 22A and 23

Cases:
- R v Way (2004) 60 NSWLR 168
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1994) 154 CLR 606
- R v Pellew [2005] NSWCCA 151 (referred to in sentencing remarks)