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Court of Criminal Appeal 2 September 2015

Dawson v R

[2015] NSWCCA 236

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CONCURRENCY OR ACCUMULATION MANIFEST EXCESS

Citation: Dawson v R [2015] NSWCCA 236
Court: Court of Criminal Appeal, NSW
Date: 2 September 2015
Judge(s): Macfarlan JA, Adams J, Fagan J

Background

The appellant was sentenced in the District Court at Newcastle in June 2014 for four serious offences, all committed on 7 July 2013. Those offences arose from a chain of events involving two police pursuits, an armed confrontation with an off-duty police officer, and an aggravated carjacking at knifepoint. The appellant had pleaded guilty to each charge.

The four counts were: driving whilst subject to a police pursuit (twice), using an offensive weapon to prevent lawful apprehension, and aggravated carjacking. Four further offences, including larceny of a motor vehicle, petrol theft by deception, failing to stop after a collision causing injury, and detaining a person to obtain advantage, were taken into account on a Form 1 attached to the carjacking count.

The District Court imposed individual sentences ranging from 18 months to 7 years and ordered partial accumulation, producing an effective non-parole period of 6 years and 6 months and an overall term of 9 years and 6 months. The appellant sought leave to appeal, arguing the degree of accumulation was excessive given the offences formed a single episode of criminality.

  • Whether the sentencing judge erred in applying the totality principle by failing to allow sufficient concurrency between the individual sentences.
  • Whether the overall sentence, once totality was applied, was manifestly excessive.

Decision

The appellant expressly accepted that none of the four individual sentences was manifestly excessive, and did not contend that all sentences should have been made fully concurrent. The specific argument was that the offences shared sufficient commonality, namely similar character, a common purpose of avoiding apprehension, and a compressed timeframe, to warrant greater concurrency than was ordered.

Fagan J (with whom Macfarlan JA and Adams J agreed) rejected this argument. The Court noted that the offending, although arising on a single day, involved distinct acts of serious criminality that escalated in seriousness as the episode progressed. The carjacking, the knife attack on the off-duty officer, and the two separate police pursuits each represented independently grave conduct and were not merely different expressions of a single wrongful act.

The Court also considered the appellant's antecedents. His criminal history included repeated unauthorised use of motor vehicles, dangerous driving, and a prior conviction for driving dangerously and occasioning death. Critically, he had been released from prison only three and a half months before committing the 7 July 2013 offences. The Court found that the overall sentence adequately reflected the requirements of specific and general deterrence and community protection, and identified no basis for disturbing the District Court's orders.

On the manifest excess ground, the Court found the overall sentence proportionate to the totality of the criminal conduct. The partial accumulation ordered by the sentencing judge was consistent with the totality principle rather than contrary to it.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the totality principle does not mandate broad concurrency simply because multiple offences arose on the same day or formed part of a continuous episode.
  • Where offences within a single episode are each independently serious and escalate in gravity, substantial accumulation of sentences may properly reflect the overall criminality involved.
  • A reoffending history, particularly where the latest offences were committed shortly after release from a prior custodial term, is a weighty consideration in assessing whether the requirements of specific deterrence and community protection are met.
  • The Court reinforced that an appellate court will not disturb an overall sentence merely because different sentencing arrangements were available, provided the sentence is within the range appropriate to the total offending.
  • No error was established where the sentencing judge's approach to accumulation was consistent with the statutory framework under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the established principles governing totality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 51B, 86(1)(b), 154(1)(a), 154C(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Road Transport Act 2013 (NSW), s 146
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases cited: No specific cases were cited in the portions of the judgment provided.