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Court of Criminal Appeal 13 May 2010

R v Dole; R v Nguyen

[2010] NSWCCA 101

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL PAROLE PERIOD SENTENCES MANIFESTLY INADEQUATE APPEALS ALLOWED.

Citation: R v Dole; R v Nguyen [2010] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 13 May 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The two respondents pleaded guilty in the District Court to specially aggravated break and enter and commit a serious indictable offence. The offending involved a planned home invasion in which a group of masked men, including the respondents, broke into the victim's home armed with a weapon and attacked him, causing two lacerations to the head requiring 17 stitches. The motivation was described as vigilante-type revenge in relation to alleged conduct by the victim against the sister of one respondent.

The sentencing judge, Ellis DCJ, imposed a non-parole period of 5 months on each respondent, departing significantly from the standard non-parole period applicable to the offence. In doing so, the District Court placed considerable weight on the respondents' subjective circumstances, characterised the motive as "perfectly understandable," and assessed the objective seriousness of the offending as less than mid-range.

The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate. Both respondents had been released to parole by the time the appeal was heard.

  • Whether the sentencing judge gave insufficient weight to the objective criminality of the offences
  • Whether the sentencing judge gave disproportionate weight to the respondents' subjective circumstances
  • Whether the sentencing judge erroneously double-counted mitigating factors when determining the departure from the standard non-parole period
  • Whether the degree of departure from the standard non-parole period was so great as to manifest error
  • Whether the sentences were manifestly inadequate overall

Decision

The Court unanimously allowed the Crown appeals, finding the sentences manifestly inadequate to a significant degree. All three judges agreed the District Court had erred in its assessment of the objective seriousness of the offending and had placed excessive weight on the respondents' subjective circumstances.

Howie J rejected the sentencing judge's characterisation of the motive as not aggravating and as "perfectly understandable." His Honour held that vigilante-type conduct of this kind is antithetical to the rule of law, and that the need for general deterrence demanded a significant sentence regardless of the respondents' personal circumstances. The Court also rejected the suggestion that the victim's alleged conduct amounted to provocation relevant to the respondents' culpability, noting the victim was not on trial.

The Court identified double counting as a further error: the sentencing judge failed to appreciate that a non-parole period must still reflect all the purposes of punishment, including denunciation, general deterrence, and retribution. A 5-month non-parole period achieved none of those purposes.

The majority (McClellan CJ at CL and Howie J) and Harrison J differed slightly on the replacement sentences. Harrison J proposed 2 years 6 months with a 20-month non-parole period for each respondent, applying a 16.6 per cent discount for guilty pleas. Howie J proposed a total term of approximately 3 years 4 months with a non-parole period of 2 years. The orders reflect the majority's approach.

Orders Made

  • The Crown appeals were allowed and the sentences imposed in the District Court were quashed.
  • Steven Nguyen was sentenced to 2 years and 6 months' imprisonment, commencing 21 July 2009 and expiring 20 January 2012, with a non-parole period of 20 months expiring 20 March 2011 and a balance of term of 10 months expiring 20 January 2012.
  • Yasir Dole was sentenced to 2 years and 6 months' imprisonment on the same terms, commencing 21 July 2009 and expiring 20 January 2012, with a non-parole period of 20 months expiring 20 March 2011 and a balance of term of 10 months expiring 20 January 2012.

(Note: The formal orders above reflect Harrison J's proposed orders. The headnote records a slightly different outcome reflecting the majority position of McClellan CJ at CL and Howie J, with a non-parole period of 2 years and balance of 1 year and 4 months from 21 July 2009. Practitioners should consult the full judgment to confirm which orders took effect.)

Key Takeaways

  • A non-parole period must still reflect all purposes of punishment, including denunciation, general deterrence, and retribution, even where significant mitigating factors justify departure from the standard non-parole period. A 5-month non-parole period for a planned, armed home invasion was held to achieve none of those purposes.
  • Vigilante motivation does not reduce the objective gravity of a home invasion. The Court of Criminal Appeal rejected the proposition that revenge-based motivation was "not aggravating" or rendered the conduct more understandable for sentencing purposes.
  • Double counting mitigating factors when departing from a standard non-parole period constitutes a sentencing error capable of founding a successful Crown appeal.
  • Provocation by the victim is an inapt concept in the context of vigilante offending, where the sentencing court accepted the respondents unilaterally decided guilt and punishment outside any lawful process.
  • Where a Crown appeal succeeds but the offenders have already been released to parole, the Court of Criminal Appeal will resentence and give credit for time served, though the respondents in this case were returned to custody to serve the revised sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187
- Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mulato v Regina [2006] NSWCCA 282
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Fidow [2004] NSWCCA 172
- R v JW [2010] NSWCCA 49
- R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- SKA v R; R v SKA [2009] NSWCCA 186
- Woodgate v R [2009] NSWCCA 137