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Court of Criminal Appeal 12 December 2007

Daniels v Regina

[2007] NSWCCA 372

Theft & property
CRIMINAL LAW AND PROCEDURE SENTENCE RELEVANCE OF PRIOR RECORD IMPOSITION NOT MANIFESTLY EXCESSIVE

Citation: Daniels v Regina [2007] NSWCCA 372
Court: NSW Court of Criminal Appeal
Date: 12 December 2007
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant pleaded guilty to a single count of robbery in the Sydney District Court. The offence involved entering a university catering office, threatening a staff member, and taking approximately $2,480 in cash. Security guards detained the applicant shortly after, and the money was recovered.

Donovan DCJ sentenced the applicant to four years' imprisonment, comprising a two-year non-parole period and a two-year balance term, commencing 21 February 2006. The applicant had a significant prior record, including five counts of robbery in 1994, an armed robbery in 1998, and a subsequent imprisonment in 2004. He had also failed to complete community service orders and had been the subject of parole revocations on more than one occasion.

The applicant sought leave to appeal against the severity of the sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred in treating the applicant's prior criminal record as an aggravating factor in relation to the offence
  • Whether the sentence imposed was manifestly excessive having regard to the plea, contrition, the circumstances of the offence, and prospects of rehabilitation

Decision

On the first ground, the Court found no error in the sentencing judge's approach to the prior record. His Honour's remarks referred to the record briefly and without elaboration, and there was no indication that the sentence was actually increased on that basis. The Court noted the important distinction between using a prior record to increase a sentence beyond what the offence warrants (which would be impermissible) and using it to limit the leniency otherwise available to an offender (which is permissible).

An exchange at the sentencing hearing made clear that the judge treated the prior record as constraining the degree of leniency he could extend, rather than as a basis for imposing a heavier penalty. That approach was consistent with the High Court's guidance in Veen v The Queen (No 2) and the Court of Criminal Appeal's own decision in R v McNaughton. The Court also confirmed, drawing on R v Pham, R v Kain, and R v A, that while exchanges between the bench and counsel during sentencing submissions are generally not a reliable basis for identifying error, they are not entirely irrelevant and can provide useful context.

On the second ground, the Court found the sentence was well within the appropriate range for this type of offence. Judicial Commission statistics confirmed the sentence fell within the established pattern for robbery matters. Grove J noted some difficulty in treating the circumstances of the offence as mitigating, given the applicant claimed drug-affected amnesia, and observed that the finding of rehabilitation prospects could fairly be described as generous in light of the applicant's history of non-compliance with community orders and repeated parole revocations.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court does not err in principle by using a prior criminal record to limit the leniency available to an offender, provided it does not use that record to increase the sentence beyond what the current offence warrants. This distinction, confirmed in Veen v The Queen (No 2), was central to the Court's reasoning.
  • No error was established merely because a sentencing judge mentioned an offender's prior record alongside other aggravating factors, where the remarks were brief and no actual increase in sentence was attributable to that mention.
  • In dismissing the first ground, the Court of Criminal Appeal reiterated that exchanges between the bench and counsel during sentencing submissions are not the primary source for identifying error; the sentencing remarks themselves are the principal reference point.
  • Judicial Commission sentencing statistics may assist in identifying a permissible range for a given offence, but they do not constitute precedents and should be used with caution.
  • A finding of rehabilitation prospects, while not challenged on appeal here, may carry reduced weight where an offender has a history of failing to complete community service and has had parole revoked on multiple occasions.

Legislation and Cases Referenced

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v McNaughton [2006] 66 NSWLR 566
- R v Pham [2005] NSWCCA 94
- R v Kain [2004] NSWCCA 143
- R v A [2004] NSWCCA 292

Legislation: No specific legislation was cited in the judgment.