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Court of Criminal Appeal 6 May 2013

Gavin v R

[2013] NSWCCA 99

Assault & violenceTheft & property
CRIMINAL LAW

Citation: Gavin v R [2013] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 6 May 2013
Judges: Macfarlan JA, Hall J, Campbell J

Background

The applicant was sentenced in the District Court in April 2011 for one count of armed robbery causing grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). The offence was committed against a housemate who was asleep in shared accommodation. The applicant entered the victim's bedroom armed with an iron bar and a small knife, subjected him to a prolonged and violent assault, robbed him of cash, an ATM card and a mobile phone, hog-tied him, and fled interstate.

The victim suffered five fractured ribs, a fractured ulnar bone in his left arm, a fractured ring finger, and a stab wound to his foot. He was left bound and drifting in and out of consciousness for several hours before freeing himself and obtaining medical assistance.

The sentence imposed was a non-parole period of six years commencing 20 June 2009, with an additional term of three years, making a total head sentence of nine years. The applicant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence of nine years imprisonment (with a six-year non-parole period) for armed robbery causing grievous bodily harm was manifestly excessive.
  • Whether comparable sentences in other cases established that the sentence fell outside the range reasonably open to the sentencing judge.

Decision

Campbell J (with whom Macfarlan JA and Hall J agreed) dismissed the appeal. The court reviewed the sentencing judge's findings in detail and found no identifiable error, whether in the matters considered, the facts found, or the principles applied. The offence was attended by a substantial number of aggravating factors, including the use of two weapons, significant cruelty, the commission of the offence in the victim's home while he was asleep and vulnerable, a lengthy prior record including crimes of violence, and offending while on conditional liberty in Victoria.

The applicant's subjective circumstances were also carefully reviewed. These included a deeply disadvantaged childhood, intellectual limitations placing him in the lowest third percentile of the population, an anti-social personality disorder, lifelong alcohol and drug abuse, sexual abuse in childhood, and a guilty plea entered at the earliest opportunity. The sentencing judge had accepted the sincerity of the applicant's expressions of remorse but could not find, given the applicant's age and criminal history, that he was unlikely to re-offend or that his rehabilitation prospects were strong.

On the role of comparable sentences, Campbell J confirmed that reference to other cases falling into the same legal category can rarely be decisive. Such cases produce a numerical range, and that range can sometimes be useful, but the only true sentencing range is the one fixed by Parliament. Consistency in sentencing demands consistency of approach, not numerical equivalence between outcomes. The court found the sentence was within the range reasonably open at first instance and that no other sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that manifest excess requires the identification of actual error in the sentencing exercise. Mere differences in emphasis or weight accorded to particular factors do not satisfy that standard under House v R.
  • Comparable sentences drawn from other cases in the same legal category cannot ordinarily prove manifest excess on their own. The court confirmed that such cases produce a numerical range that may sometimes be useful, but the binding range is the one set by Parliament.
  • Consistency in sentencing means consistency of approach, not numerical equivalence between sentences imposed in different cases, consistent with the High Court's observation in Hili v The Queen.
  • Where a sentencing judge finds that an offender is unlikely to be rehabilitated and cannot be assessed as unlikely to re-offend, the subjective factors that might otherwise reduce general deterrence and retribution (such as intellectual limitation and personality dysfunction) may simultaneously heighten the need for community protection, potentially producing no net reduction in the overall sentence.
  • A standard non-parole period of seven years under s 98 of the Crimes Act 1900 (NSW) does not fix an absolute benchmark; the sentencing court retains the obligation to weigh all relevant individual factors, and a non-parole period set below the standard does not of itself indicate error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (armed robbery causing grievous bodily harm)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Judicial Officers Act 1986 (NSW)

Cases:
- House v R [1936] HCA 40; 55 CLR 499
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Henry v R [2007] NSWCCA 90
- R v Engert (1995) 84 A Crim R 67