Citation: R v Blow [2010] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judge(s): McClellan CJ at CL; Hulme J; Davies J
Background
The respondent, a young Aboriginal man with a disadvantaged background and a prior criminal history, was sentenced in the District Court by Toner DCJ following convictions on six counts arising from a series of offences committed in Forster between September 2008 and January 2009. The offences included three counts of aggravated break, enter and steal, two counts of robbery in company, and one count of robbery in company with wounding. A Form 1 containing four further break-and-enter charges was also taken into account on sentencing for one count.
The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending that the sentences imposed by the District Court were manifestly inadequate both individually and in their cumulative effect. The Crown did not point to any specific identifiable error in the sentencing judge's reasoning but relied on the overall inadequacy of the penalties.
The aggregate non-parole period imposed at first instance was four years, with a total term of eight years. The most serious single offence, robbery in company with wounding (count 5), attracted a standard non-parole period of seven years under the relevant legislation.
Legal Issues
- Whether the individual sentences imposed on each count were manifestly inadequate so as to warrant appellate intervention.
- Whether the cumulative effect of the sentences, even if each might arguably be considered in isolation, produced an aggregate that was so inadequate as to require correction.
- How a sentencing court should balance the recognised mitigating considerations applicable to offenders from deprived and disadvantaged backgrounds against the need for specific deterrence, particularly where an offender has a prior criminal history.
Decision
The Court of Criminal Appeal allowed the Crown appeal in respect of counts 3 and 5, while affirming the sentences on counts 1, 2, 4 and 6. McClellan CJ at CL delivered the principal judgment, with Hulme J and Davies J agreeing.
The Court found that, even accepting the relevance of the respondent's disadvantaged background and Aboriginality to the sentencing exercise, the sentences on counts 3 and 5 were inadequate to a degree that required intervention. The sentencing judge had failed to give sufficient weight to specific deterrence, particularly given the respondent's prior offending history and the serious nature of the offences, which included stabbing a victim and threatening another with death.
Hulme J added that the original sentences on at least five of the six counts appeared to be approximately half the length they should have been, having regard to the standard non-parole periods and the guidance provided by this Court's earlier decision in R v Henry. His Honour observed that sympathy for an offender's deprived background does not displace the need for meaningful sentences where the conduct involves serious violence against others.
The Court noted that specific deterrence was of particular significance in this case. The respondent had appeared before courts on five prior occasions, and it could reasonably be inferred that the unacceptability of his conduct had been made plain to him on those occasions. Hulme J observed that the resulting effective non-parole period of eight years, while a substantial imposition on a twenty-year-old, was arguably still insufficient given the nature and frequency of the offending.
Orders Made
- The Crown appeal in respect of counts 3 and 5 is allowed.
- The sentences for counts 1, 2, 4 and 6 are affirmed.
- Count 3 sentence quashed and replaced with a fixed term of 4 years commencing 20 January 2010 and expiring 19 January 2014.
- Count 5 sentence quashed and replaced with a non-parole period of 5 years commencing 20 January 2012 and expiring 19 January 2017, with a balance of term of 3 years commencing 20 January 2017 and expiring 19 January 2020.
- Aggregate non-parole period of 8 years with a total term of 11 years imprisonment.
Key Takeaways
- Manifestly inadequate sentences can justify appellate intervention even where no specific identifiable error in the sentencing judge's reasoning is established, provided the overall outcome is so deficient as to require correction.
- An offender's deprived or disadvantaged background, including Aboriginality, is a recognised mitigating consideration under principles drawn from R v Fernando, but it does not override the need for adequate sentences where offences involve serious violence.
- Specific deterrence carries particular weight where an offender has a prior criminal history and has previously been dealt with by courts for similar conduct, and a sentencing court that fails to give it sufficient weight may produce sentences open to Crown appeal.
- Standard non-parole periods set by legislation, together with established guideline cases such as R v Henry, provide clear benchmarks that sentencing courts must engage with; departures to approximately half the indicated length are unlikely to be sustained on appeal.
- In substituting sentences on appeal, the Court of Criminal Appeal recalibrated the structure of the individual sentences to ensure that the aggregate reflected the overall criminality involved across the series of offences.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 97(1), 98, 112(2), 345
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
Cases:
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Ah-See [2004] NSWCCA 202
- R v Fernando (1992) 76 A Crim R 58
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Newman [2004] NSWCCA 102
- R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146