Citation: DFS v Regina [2007] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 27 March 2007
Judge(s): McClellan CJ at CL, Barr J, Hoeben J
Background
The appellant, referred to as DFS, was a young offender who pleaded guilty in the Children's Court to a series of serious offences committed in May and June 2004. He was committed to the District Court for sentencing. The offending on the first indictment involved a night of prolific criminal activity alongside two adult co-offenders, Jarred Brown and Kirk Crossley, including motor vehicle theft, break-and-enter offences at a BP service station, a Footlocker store, and a Bogas service station, a carjacking (in which a woman was assaulted), and receiving stolen property from robberies committed by his companions.
The second indictment arose from DFS's conduct while held at Kariong Juvenile Justice Centre. Those charges included multiple assaults on corrections officers, malicious damage to property, and one incident involving DFS wielding a steel pole against staff attempting to intervene during a disturbance.
Coolahan DCJ imposed a total effective sentence of six years imprisonment, comprising a non-parole period of four years commencing 31 May 2004 and an additional term of two years. DFS sought leave to appeal on the grounds that his sentences were excessive compared to those given to his co-offenders, and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentences imposed on DFS were excessive when compared with those imposed on co-offenders Brown and Crossley.
- Whether the overall sentence and effective non-parole period were manifestly excessive, having regard to DFS's age, background, personal circumstances, and relative degree of participation.
Decision
On the co-offender comparison ground, the Court found it impossible to draw any precise comparison between the sentences and roles of the three offenders. Brown and Crossley were adults, while DFS was still a child at the time. The Court noted that DFS was not a minor participant throughout: he was the driver of the stolen vehicles and his skill and determination were central to the success of the criminal enterprise. The sentencing judge had been entitled to conclude that there was no clear leader among the group.
The Court accepted that the age difference of approximately one year and four months between DFS and his adult co-offenders did not warrant greater differentiation than that already reflected in the sentences imposed. The overall sentences for each of the three offenders were found to reflect their respective criminality and ages. No error was identified in how the sentencing judge weighed DFS's role compared to that of Brown and Crossley.
On the ground of manifest excess, Barr J acknowledged the various mitigating matters raised by counsel, including DFS's age, his willingness to admit his offences, his difficult family history, the fact he had suffered sexual assault as a young child, and the sentencing judge's finding of genuine remorse. Balancing all of those matters against the totality of DFS's offending, the Court concluded that each of the sentences, and the overall sentence, fell within the sentencing discretion of the District Court. The ground was not made out.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A broad comparison between sentences imposed on co-offenders will not, by itself, establish appealable error where the offenders' roles, ages, and circumstances differ in ways that resist precise measurement.
- Where a young offender served as the principal driver in a series of crimes, a sentencing court may properly treat that role as substantial rather than peripheral, even when other participants committed some offences independently.
- The Court of Criminal Appeal confirmed that a difference of approximately one year and four months in age between a child offender and adult co-offenders does not automatically require a more marked disparity in sentencing outcomes.
- Mitigating factors including youth, a troubled background, sexual abuse in childhood, remorse, and willingness to admit offending are relevant but do not necessarily reduce a sentence below the range available for serious and sustained criminal conduct.
- In dismissing the appeal, the Court treated the question of manifest excess as one of impression, weighing the totality of the offending against all personal circumstances before concluding the sentence was within the available discretion.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 32 (schedule of additional offences taken into account on sentencing)
Cases: No cases were cited in the portions of the judgment provided.