Citation: Robert Edwin Donn v R [2010] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 10 March 2010
Judges: James J, Hulme J, Hidden J
Background
The applicant pleaded guilty in the District Court to two serious property offences: aggravated attempted break and enter with intent to steal, and aggravated break, enter and steal. Both offences involved commercial premises in the central west of New South Wales and were committed as part of a series of break-ins at RSL clubs and other venues between 2004 and 2006. Additional similar offences were taken into account on two Form 1 documents (a procedure that allows related charges to be considered at sentencing without recording separate convictions).
The sentencing judge in the District Court imposed consecutive sentences totalling 6 years and 6 months imprisonment, with an effective non-parole period of 5 years. The sentencing judge found special circumstances (a finding that can justify extending the proportion of the sentence served on parole, to allow for supervision and rehabilitation) but the applicant argued that finding was not given sufficient weight, particularly given the accumulation of sentences and his mental illness.
A co-offender, King, had been sentenced separately for his role in some of the same offences. The applicant argued that the disparity between his sentence and King's gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the sentencing judge gave sufficient weight to special circumstances arising from the accumulation of sentences and the applicant's mental illness (a schizophrenic disorder linked to long-term drug abuse)
- Whether the resulting non-parole period was manifestly excessive in light of that finding
- Whether the disparity between the applicant's sentence and the sentence passed on his co-offender, King, warranted intervention by the Court of Criminal Appeal
Decision
On the special circumstances ground, the Court of Criminal Appeal found that the sentencing judge had erred. Although the judge correctly identified special circumstances and extended the balance of term on the second count, the resulting non-parole period of 3 years still represented too high a proportion of the total sentence, given the degree of accumulation and the applicant's significant mental health needs. The Court found this justified intervention.
On the disparity ground, the Court declined to intervene. It accepted that there was a notable difference between the sentences, but noted that King's sentence was itself very lenient. The Court also observed that the applicant stood for sentence for additional offences in which King had no involvement, and that the structure of the sentences, including the degree of accumulation and the approach to totality, meant the first count's sentence could not be viewed in isolation.
In re-sentencing, the Court took into account that the applicant had engaged in educational courses and a methadone programme while in custody, and continued to receive support from his father. The Court reduced the non-parole period on the second count from 3 years to 2 years and 3 months, producing an aggregate sentence of 6 years and 6 months with an effective non-parole period of 4 years and 3 months.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentence on the first count confirmed
- Sentence on the second count quashed and replaced with:
- Non-parole period of 2 years and 3 months, commencing 4 November 2008 and expiring 3 February 2011
- Balance of term of 2 years and 3 months, commencing 4 February 2011 and expiring 3 May 2013
- Aggregate sentence: 6 years and 6 months imprisonment with an effective non-parole period of 4 years and 3 months; total sentence expiring 3 May 2013
Key Takeaways
- A finding of special circumstances at sentencing must be given meaningful effect in the structure of the sentence, not merely acknowledged. Where sentences are accumulated and an offender has significant mental health needs, a failure to adequately reduce the non-parole period can constitute error warranting appellate intervention.
- Schizophrenia arising from prolonged drug abuse, and the associated need for ongoing supervised rehabilitation, can support a finding of special circumstances and a reduction in the proportion of a sentence spent in custody.
- Disparity between co-offenders' sentences does not automatically warrant intervention. The Court of Criminal Appeal noted that where a co-offender's sentence is independently assessed as very lenient, it carries reduced weight as a comparator.
- Where an applicant stands for sentence for offences in which a co-offender was not involved, the overall sentencing structure, including concurrency and totality, must be assessed with that broader picture in mind before a disparity argument can succeed.
- Post-sentence conduct, including participation in educational programmes and drug treatment, is a material consideration on re-sentence even before the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal, maximum 20 years, standard non-parole period 5 years)
- Crimes Act 1900 (NSW), s 113(2) (aggravated attempted break and enter with intent, maximum 14 years)
Cases:
- Clarke v R [2009] NSWCCA 49