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Court of Criminal Appeal 16 December 2010

Dagdanasar v R

[2010] NSWCCA 310

Theft & propertyTraffic & driving
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Dagdanasar v R [2010] NSWCCA 310
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2010
Judges: McClellan CJ at CL, Hislop J, Price J (judgment delivered by Price J, with whom the other judges agreed)

Background

The appellant pleaded guilty mid-trial to knowingly driving a conveyance without the owner's consent, contrary to s 154A(1)(b) of the Crimes Act 1900. The offence involved driving a stolen Toyota Kluger at high speed through inner Sydney during peak hour, evading police in a protracted and dangerous pursuit, colliding with a police vehicle and a civilian car, and causing a detective to become trapped between two moving vehicles before being released only after another officer fired a warning shot.

The appellant was sentenced in the District Court in September 2009. In addition to the s 154A(1)(b) charge, he was sentenced for two related offences dealt with on a certificate: dangerous driving and driving whilst disqualified. The total effective sentence was a non-parole period of three years commencing February 2009, with a balance of term of 18 months. A lengthy disqualification from driving was also imposed.

The appellant sought leave to appeal against sentence on multiple grounds, one of which (parity with co-offenders) was abandoned before the Court of Criminal Appeal.

  • Whether the sentencing judge erred in failing to give a discount for the appellant's guilty pleas to the two certificate offences
  • Whether the sentencing judge erred in assessing the objective seriousness of the driving-without-consent offence, including whether the value of the stolen vehicle was a relevant consideration
  • Whether the sentencing judge erred by failing to refer to the possibility that the offence could have been dealt with summarily in the Local Court
  • Whether the sentence for the driving-without-consent count was manifestly excessive

Decision

The Court granted leave to appeal but dismissed all grounds. On the question of guilty plea discounts for the certificate offences, the Court found the sentencing judge had in fact allowed a discount, pointing to explicit references in the sentencing remarks to the utilitarian value of those pleas.

On objective seriousness, the Court held the sentencing judge was correct to assess the offence as being in the upper range. The sustained and highly dangerous driving conduct, the involvement of multiple police officers, and the risk to the public amply supported that assessment. The appellant argued that because the stolen vehicle was expensive (a Toyota Kluger), the offence was treated as more serious than it should have been. The Court rejected this, finding that the value of the vehicle was not elevated as an independent aggravating factor; rather, the manner of driving was the dominant consideration.

On the summary disposal ground, the Court acknowledged that a sentencing judge in a higher court may have regard to the Local Court jurisdictional limit when an offence could appropriately have been dealt with summarily. However, the Court concluded this offence could not have been appropriately disposed of in the Local Court, given its objective gravity. The failure to mention summary disposal in the sentencing remarks therefore disclosed no error.

On manifest excess, the Court noted that the statistical material from the Judicial Commission indicated a median non-parole period of 12 months in comparable cases, and the effective non-parole period for this count was approximately 12 months once the accumulated sentence structure was examined. The Court further noted that the appellant had been released on parole only about seven weeks before committing these offences, an aggravating factor that entitled the sentencing judge to place greater weight on personal deterrence and community protection.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The value of a stolen vehicle is not treated as a freestanding aggravating factor in sentencing for an offence under s 154A(1)(b) of the Crimes Act 1900; the manner and circumstances of the driving remain the central consideration in assessing objective seriousness.
  • A sentencing judge in a higher court need only consider the Local Court's jurisdictional limit where the offence could appropriately have been dealt with summarily; where the objective gravity of the offence places it beyond summary disposal, no error arises from omitting that reference in sentencing remarks.
  • Under the principle confirmed in R v McNaughton, a sentencing court is entitled to give greater weight to personal deterrence and community protection where an offender commits serious offences while recently released on parole.
  • Statistical sentencing data from the Judicial Commission is relevant to a manifest excess argument, but it does not operate as a ceiling; each case turns on its own facts, and aggravating circumstances can properly support a sentence above the median.
  • In dismissing the appeal, the Court confirmed that a holistic view of the accumulated sentence structure is necessary when assessing whether any individual component is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 154A(1)(a), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)

Cases:
- Georgopolous v R [2010] NSWCCA 246
- House v The King (1936) 55 CLR 499
- Markarian v R (2005) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Pearce v R (1998) 194 CLR 610
- R v El Masri [2005] NSWCCA 167
- R v Johnson [2004] NSWCCA 140
- R v McNaughton [2006] NSWCCA 242
- R v Palmer [2005] NSWCCA 349
- R v Way (2004) 60 NSWLR 168
- Wise v R [2006] NSWCCA 264