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Court of Criminal Appeal 19 December 2014

R v DH; R v AH

[2014] NSWCCA 326

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v DH; R v AH [2014] NSWCCA 326
Court: Court of Criminal Appeal
Date: 19 December 2014
Judge(s): Leeming JA, Simpson J, Button J

Background

Two respondents, DH (aged 16 at the time) and AH (aged 17), participated in a serious armed home invasion at 3:00am in company with two others. All offenders were armed. DH held a knife to a female victim's throat, while a co-offender struck the male victim at least four times with an axe, causing severe traumatic brain injury. Both respondents were charged under s 98 of the Crimes Act 1900 (NSW) with robbery with an offensive weapon causing grievous bodily harm.

Both respondents had grown up in circumstances that included exposure to civil war, which affected their parents' capacity to provide guidance. By the time of sentencing, both had made significant progress towards rehabilitation. AH in particular had excelled in education while in custody, earning multiple awards for behaviour and academic performance.

The Crown appealed the sentences imposed by Craigie DCJ in the District Court, arguing that both sentences were manifestly inadequate given the extreme gravity of the offence.

  • Whether the sentences imposed on DH and AH were manifestly inadequate, having regard to the objective gravity of the offence.
  • Whether the sentencing judge erred in his assessment of DH's prospects of rehabilitation.
  • How a sentencing court should balance the objective seriousness of an offence against exceptional subjective circumstances, particularly where the offenders are children.
  • The scope of the appellate court's power to intervene in Crown sentence appeals under s 5D of the Criminal Appeal Act 1912 (NSW).

Decision

The Court of Criminal Appeal unanimously dismissed both Crown appeals. All three judges agreed that the sentencing judge had correctly identified the competing considerations and exercised his discretion within the available range, even if only just.

Button J, with whom Simpson J and Leeming JA agreed, conducted a careful review of the starting points used by Craigie DCJ and concluded they were not inherently suggestive of error. The offence was of the utmost gravity, but the subjective circumstances of both respondents were described as "wholly exceptional," including their age, backgrounds marked by exposure to civil war, and the substantial evidence of rehabilitation already underway before sentencing.

The Court reaffirmed the principle drawn from Bugmy v The Queen (2013) 249 CLR 571 that the weight to be given to competing sentencing considerations is a matter for the sentencing judge. The appellate court's power to intervene is only engaged when the sentence falls below the range that could justly be imposed consistently with sentencing standards, not merely because the appellate court would have weighed the factors differently.

Simpson J noted that the length of deliberation required to determine whether the sentences were manifestly inadequate was itself indicative that the ground had not been made out, consistent with the High Court's observation in Dinsdale v The Queen (2000) 202 CLR 321 that manifest inadequacy should be plainly apparent.

Orders Made

  • The Crown appeal against the sentence imposed on AH is dismissed.
  • The Crown appeal against the sentence imposed on DH is dismissed.

Key Takeaways

  • A sentence that is "wholly exceptional" may be justified where the offender's subjective circumstances are themselves wholly exceptional, including youth, background, and demonstrated rehabilitation.
  • Under the principle affirmed in Bugmy v The Queen, the weight given to competing sentencing factors is a matter within the sentencing judge's discretion; an appellate court cannot substitute its own weighting unless the resulting sentence falls outside the range of sentences justly available.
  • The principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) require a sentencing court to give genuine weight to a child offender's immaturity, potential for rehabilitation, and reintegration, even where the offence is of extreme gravity.
  • In dismissing both Crown appeals, the Court of Criminal Appeal confirmed that respect for "individualised justice" extends to respecting a sentencing judge's discretion to impose an exceptional sentence where circumstances warrant it.
  • No error having been established, the Court did not need to consider the residual discretion to decline to intervene in a Crown appeal even where error is found.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 15A, 17, 19
- Crimes Act 1900 (NSW), s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Mulato v R [2006] NSWCCA 282
- R v O'Donoghue (1988) 34 A Crim R 397