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Court of Criminal Appeal 6 March 2006

Dougan v Regina

[2006] NSWCCA 34

Also reported as (2006) 160 A Crim R 135
Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Dougan v Regina [2006] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 6 March 2006
Judge(s): Giles JA, Grove J, Hoeben J

Background

The appellant had pleaded guilty to two offences: assault with intent to rob whilst armed with a dangerous weapon (under s 97(2) of the Crimes Act 1900, maximum penalty 25 years), and threatening a witness. The armed robbery offence arose from a planned hold-up of a service station in Kiama in November 2003, during which a firearm was pointed at the neck of the 74-year-old owner. The witness-threatening offence occurred when the appellant drew his finger across his throat while a key prosecution witness gave evidence during committal proceedings.

The District Court sentenced the appellant to a total effective sentence of 9 years, comprising a non-parole period of 7 years with a balance of term of 2 years. The appellant had a substantial criminal history including four prior armed robbery convictions, and had committed the robbery offence while on parole for a similar matter.

The appellant sought leave to appeal against sentence, arguing that the sentencing judge had misapplied statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, improperly used the criminal record as an aggravating factor, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge improperly treated elements of the offence (such as the threatened use of violence) as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the judge erred in taking the appellant's criminal record into account as an aggravating factor under s 21A
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal, in reasons delivered by Hoeben J (with Giles JA and Grove J agreeing), found two errors in the sentencing judge's approach. First, the sentencing judge failed to explain how the threatened use of violence should be properly taken into account when assessing the seriousness of the s 97(2) offence, given that threatened violence is an element of that offence rather than a matter to be separately aggravated under s 21A. Second, the judge erred in treating the appellant's criminal record as a formal aggravating factor under s 21A, since that provision does not extend to using prior convictions in that way.

Despite identifying these errors, the Court found they did not affect the outcome. Both matters could and should have been taken into account by the sentencing judge through different and appropriate mechanisms. The criminal history, in particular, was relevant to considerations of retribution, deterrence, and community protection as discussed in Veen v The Queen (No 2), and the Court noted those principles applied with "considerable particularity" to the appellant given his pattern of serious offending.

The Court rejected the ground of manifest excess. The offence was a serious example of its class: it involved a firearm pointed at a vulnerable elderly victim, extensive planning, and was committed while the appellant was on parole for a similar offence. Reducing the sentences would have produced terms so lenient as to fall outside the applicable discretionary range, contrary to s 6(3) of the Criminal Appeal Act 1912. The findings of no special circumstances, continuing lack of contrition, and poor rehabilitation prospects reinforced this conclusion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge cannot treat as an aggravating factor any matter that constitutes an element of the offence charged; the threatened use of violence in an armed robbery offence fell into that category.
  • A prior criminal record cannot be used as a formal aggravating factor under s 21A, though it remains relevant to sentencing on other established bases, including deterrence, retribution, and community protection under the principles in Veen v The Queen (No 2).
  • Identifying sentencing errors does not automatically result in resentencing; where the errors, properly corrected, would have produced a sentence within the same range, the appeal court may decline to intervene.
  • In dismissing the appeal, the Court confirmed that reducing the sentences below those imposed would have been impermissible under s 6(3) of the Criminal Appeal Act 1912, as the resulting sentences would have fallen below the applicable discretionary range.
  • Committing a serious offence while on parole for a similar matter, combined with an extensive history of armed robbery, extensive planning, and a vulnerable victim, placed the offending at a level where condign punishment was required.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 322
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346
- R v Way (2004) 60 NSWLR (at [106]–[107])
- Wong and Leung v The Queen (2001) 207 CLR 584
- R v Blair [2005] NSWCCA 78
- R v Castles [2005] NSWCCA 79
- R v Ibrahimi [2005] NSWCCA 153
- R v Street [2005] NSWCCA 139
- R v Johnson [2004] NSWCCA 76
- R v Johnstone [2004] NSWCCA 307
- R v Wickham [2004] NSWCCA 193
- Director of Public Prosecutions v Ottewell (1970) AC 642
- Miller v Hrvojevic (1972) VR 305
- R v Farrer (1983) 78 FLR 10
- R v Prior (CCA, unreported, 7 October 1997)