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Court of Criminal Appeal 29 May 2015

Cowan v R

[2015] NSWCCA 118

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE OFFENDING IN THE NATURE OF A “RAM RAID” ERROR ESTABLISHED

Citation: Cowan v R [2015] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 29 May 2015
Judges: Bathurst CJ, Simpson J, Bellew J

Background

The applicant pleaded guilty in the District Court to aggravated break and enter and commit a serious indictable offence (larceny), contrary to s 112(2) of the Crimes Act 1900 (NSW). The offending was a "ram raid": in the early hours of 3 September 2013, he and co-offenders drove a stolen vehicle through the locked front doors of a bottle shop in Evans Head and stole alcohol, cigarettes, and lighters. Damage and stolen stock totalled over $16,000.

Acting Judge Black sentenced the applicant to 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months. The applicant was 18 years and 4 months old at the time of the offending.

Before the sentencing judge there was substantial evidence of the applicant's intellectual disability, including multiple psychological assessments placing his cognitive functioning in the extremely low to moderate range of impairment. Despite this, neither party made submissions to the sentencing judge about the principles applicable to sentencing mentally ill or intellectually disabled offenders, and the judge's ex tempore remarks made no reference to those principles.

  • Whether the sentencing judge erred by failing to apply the principles relevant to sentencing an intellectually disabled offender, in circumstances where no submissions on those principles were made by either party.
  • Whether the sentencing judge adequately took into account the applicant's youth and immaturity as a separate sentencing consideration.
  • Whether the Fernando/Bugmy principles applied, given the applicant's Aboriginal background and circumstances of deprivation.
  • Whether special circumstances existed warranting an adjustment to the ratio between the head sentence and the non-parole period.

Decision

Ground 1: Intellectual disability principles. The Court of Criminal Appeal held that the sentencing judge erred by failing to apply the principles applicable to the sentencing of intellectually disabled offenders. The obligation to consider those principles rests on the sentencing judge regardless of whether counsel has raised the issue. The evidence of the applicant's intellectual disability was substantial and clearly before the court, making the failure to engage with the relevant principles a material error.

Ground 2: Youth and immaturity. Simpson J, with whom Bathurst CJ expressed agreement on this point, was not satisfied that the sentencing judge had genuinely taken the applicant's youth and immaturity into account in assessing moral culpability. A bare reference to age or the description of an offender as a "young person" does not demonstrate that the appropriate sentencing principles were applied. Bellew J expressed some hesitation on this ground but agreed that the resentence he proposed adequately encompassed all relevant considerations including youth.

Fernando/Bugmy principles and subjective case. On resentencing, Bellew J found that the Fernando/Bugmy principles applied. The applicant's Aboriginal background, deprived and dysfunctional upbringing, illiteracy, and innumeracy all warranted full weight in the sentencing exercise. The court also found that the applicant's impaired mental state was causally connected to the offending, that he had entered an early guilty plea attracting a 25 per cent discount, and that the evidence indicated good prospects of rehabilitation with a longer period on parole.

Special circumstances and resentence. The Court found special circumstances, reflecting the applicant's entry into adult custody for the first time and the importance of an extended period on parole to support rehabilitation. The head sentence was set at 3 years (reflecting a 25 per cent discount from a starting point of 4 years), with an adjusted ratio between non-parole period and balance of term.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentence quashed.
  • On resentencing: non-parole period of 1 year and 10 months commencing 3 September 2013 and expiring 2 July 2015, with a balance of term of 1 year and 2 months commencing 3 July 2015 and expiring 2 September 2016.

Key Takeaways

  • A sentencing judge bears an independent obligation to apply the principles applicable to intellectually disabled offenders where evidence of disability is before the court, even if neither the prosecution nor defence has made submissions on those principles.
  • Merely noting an offender's age or describing them as a "young person" is insufficient to demonstrate that the relevant principles concerning youth and immaturity were applied in assessing moral culpability.
  • Under the Fernando/Bugmy framework, the deprived background of an Aboriginal offender must be given full weight and does not diminish in significance over time; those principles applied on the facts given the applicant's circumstances of severe deprivation.
  • Where an intellectual disability is established and is causally connected to the offending, it is a material consideration going directly to the assessment of moral culpability.
  • Special circumstances can be found where an offender is entering adult custody for the first time and the evidence supports a finding that a longer parole period would meaningfully assist rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2), s 154A(1)(b), s 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947
- Elturk v R [2014] NSWCCA 61
- Gommesen v R [2012] NSWCCA 226
- McLaren v R [2012] NSWCCA 284
- Martin v R [2015] NSWCCA 6
- R v Campbell [2014] NSWCCA 102
- R v Tuuta [2014] NSWCCA 40
- Warner aka Jeremy Pachenko v R [2013] NSWCCA 10