AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
13
Court of Criminal Appeal 7 February 2007

DB v Regina; DNN v Regina

[2007] NSWCCA 27

Also reported as 167 A Crim R 393
Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE AGGRAVATED ARMED ROBBERIES PARITY.

Citation: DB v Regina; DNN v Regina [2007] NSWCCA 27
Court: New South Wales Court of Criminal Appeal
Date: 7 February 2007
Judges: McClellan CJ at CL, Adams J, Latham J

Background

Two applicants, referred to as DB and DNN, sought leave to appeal sentences imposed in the District Court by Finnane QC DCJ following convictions for a series of aggravated armed robberies. DB was a juvenile at the time of the offences, and was a younger family member who had been dependent on DNN for food and shelter. DNN was an adult.

Both applicants were sentenced in August 2005. DB received sentences that, in aggregate, were influenced by comparison with the sentences imposed on DNN and another adult offender (Dung Dinh), who had been convicted of largely different offences. The sentencing judge failed to adequately account for DB's age and the distinct principles applicable to juvenile offenders.

The appeals were heard together, raising overlapping issues about errors in the sentencing process, the appropriate application of parity principles, and the proper approach to re-sentencing once error is established.

  • Whether the sentencing judge failed to give proper consideration to the principles applicable to juvenile offenders under both the Children (Criminal Proceedings) Act 1987 and the common law, particularly regarding culpability and rehabilitation
  • Whether the sentences imposed on DB and DNN were inconsistent with the agreed statements of facts
  • Whether parity principles were incorrectly applied, including by comparing DB's sentence to those of adult co-offenders convicted of different offences
  • Whether the aggregate sentences imposed were manifestly excessive
  • The proper interpretation and application of s 6(3) of the Criminal Appeal Act 1912 when error is established, specifically whether the Court must independently assess the appropriate sentence

Decision

The Court of Criminal Appeal found significant error in the District Court's sentencing of both applicants. In relation to DB, Latham J (with whom McClellan CJ at CL agreed) held that the sentencing judge had failed to give proper consideration to the principles that a court must apply when exercising criminal jurisdiction over children. Those principles, arising from both statute and the common law, require particular attention to culpability and the relative weight to be given to rehabilitation. The judge's reasoning on both points was found to be seriously flawed.

Further errors were identified in the sentencing of DB. The sentencing judge had imposed a heavier sentence on DB than on DNN for the Burwood Heights offence, despite DB being the younger, dependent party. The judge had also anchored DB's aggregate sentence by reference to the aggregate starting point applied to DNN and Dung Dinh, two adults convicted of largely different offences. That comparison had no proper foundation.

On the question of s 6(3) of the Criminal Appeal Act 1912, the Court noted that the proper interpretation of the provision had not been the subject of detailed submissions and was therefore not definitively resolved. McClellan CJ at CL noted the issue may warrant consideration by a five-judge bench. Adams J discussed the provision in some detail, observing that different outcomes for DB's individual counts arose depending on which interpretation was applied, and that the Court must form a view that some other sentence is warranted in law before it can substitute a new sentence.

For DNN, the Court found the aggregate sentence was manifestly excessive and that re-sentencing was required. The Court imposed revised sentences for both applicants, structured to reflect the objective gravity of each offence while accounting for relevant subjective circumstances, including that the sentences represented a first custodial term for DNN.

Orders Made

Applicant DB:
- Leave to appeal granted; appeal allowed; sentences imposed below quashed
- Count one: non-parole period of 3 years from 5 April 2004, expiring 4 April 2007; balance of term of 3 years expiring 4 April 2010
- Count two: non-parole period of 4 years from 5 April 2006, expiring 4 April 2010; balance of term of 4 years expiring 4 April 2014 (Form One offences taken into account)
- Count three: non-parole period of 2 years from 5 April 2008, expiring 4 April 2010; balance of term of 3 years expiring 4 April 2013
- DB eligible for release to parole on 5 April 2010

Applicant DNN:
- Leave to appeal granted; appeal allowed; sentences imposed below quashed
- Count one: non-parole period of 6 years from 31 October 2003, expiring 30 October 2009; balance of term of 4 years expiring 30 October 2013 (Form One offences taken into account)
- Count two: non-parole period of 3 years from 31 October 2005, expiring 30 October 2008; balance of term of 3 years expiring 30 October 2011
- Count three: non-parole period of 3 years from 31 October 2007, expiring 30 October 2010; balance of term of 2 years expiring 30 October 2012
- Count four: non-parole period of 3 years from 31 October 2008, expiring 30 October 2011; balance of term of 4 years expiring 30 October 2015
- DNN eligible for release to parole on 31 October 2011

Key Takeaways

  • A sentencing court's failure to give proper consideration to the principles applicable to juvenile offenders, including the distinct weight to be given to culpability and rehabilitation, constitutes a legal error that can vitiate the sentence entirely.

  • Parity principles cannot properly operate by comparing a juvenile offender's aggregate sentence to the aggregate starting point applied to adult co-offenders who were convicted of largely different offences.

  • Under s 6(3) of the Criminal Appeal Act 1912, mere identification of error is not sufficient to warrant intervention; the Court of Criminal Appeal must form the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed.

  • The interpretation of s 6(3) in cases where a sentencing discretion has miscarried remained unresolved by this decision, with McClellan CJ at CL indicating the question may be suitable for a five-judge bench.

  • A juvenile offender's relative vulnerability to the influence of an older, dominant co-offender is a relevant circumstance that the sentencing court must weigh when assessing culpability.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Simpson (2001) 53 NSWLR 704
- Veen v The Queen [No.2] (1988) 164 CLR 465
- R v De Simoni (1981) 147 CLR 383
- House v The King (1936) 55 CLR 499
- AB v The Queen (1999) 198 CLR 111
- Lowndes v The Queen (1999) 195 CLR 665
- Ryan v The Queen (2001) 206 CLR 267
- GAS v The Queen (2004) 217 CLR 198
- R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
- R v PP (2003) 142 A Crim R 369
- R v DM [2005] NSWCCA 181
- R v Johnson [2005] NSWCCA 534
- K v The Queen HCA S171/2000
- R v GDP (1991) 53 A Crim R 112