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Court of Criminal Appeal 4 December 2015

R v Dennis

[2015] NSWCCA 297

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE APPEAL APPLICANT ON PAROLE AT TIME OF OFFENCE SIGNIFICANT CRIMINAL RECORD SENTENCE OF ELEVEN YEARS WITH NON STANDARD NON WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: R v Dennis [2015] NSWCCA 297
Court: Court of Criminal Appeal, NSW
Date: 4 December 2015
Judges: Johnson J, Beech-Jones J, R.S. Hulme AJ

Background

The applicant was convicted by a jury of robbery while armed and inflicting grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). The offence occurred in August 2012 when the applicant boarded a train at Kingswood, moved to a carriage where the victim was sitting alone, and slashed the victim's throat with a scalpel-like instrument before stealing his mobile phone. The victim suffered a 16-centimetre cut to his throat, including injury to his anterior jugular vein, and continued to experience pain two years later.

At the time of the offence, the applicant was on parole for a prior offence of violence also committed against public transport users. He had a significant criminal history and was found with the victim's phone and the scalpel handle in his possession shortly after the attack.

The applicant was sentenced in the District Court to eleven years' imprisonment with a non-parole period of eight years and three months. He sought leave to appeal to the Court of Criminal Appeal on the grounds that the sentencing judge erred in assessing objective seriousness, that a breach of procedural fairness occurred, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence as above mid-range
  • Whether the sentencing judge denied procedural fairness by relying on the applicant's prior offence to establish premeditation and planning, in circumstances where the judge had earlier implicitly disowned that purpose
  • Whether the overall sentence of eleven years with a non-parole period of eight years and three months was manifestly excessive

Decision

Objective seriousness: The Court accepted that the sentencing judge made a minor factual error, noting that the attack came from in front of the victim rather than from behind. However, the Court found this error was not material to the overall assessment. The sentencing judge's finding that the offence was above mid-range in objective seriousness was upheld, given the deliberate use of a cutting instrument on a vulnerable, unsuspecting victim on public transport, the serious and potentially life-threatening nature of a throat wound, and the evidence of at least some degree of planning.

Procedural fairness: The Court, particularly R.S. Hulme AJ, accepted that there was a denial of procedural fairness when the sentencing judge used the applicant's prior offence to support a finding of premeditation, having earlier implicitly suggested that purpose was not in play. Beech-Jones J also acknowledged the procedural fairness concern. Despite this, the Court found the error caused no practical injustice. Even if further submissions had been made on the point, they could not realistically have produced a different finding on premeditation given the other evidence supporting it.

Manifest excess: The Court examined statistics on sentencing for comparable offences under s 98. The Court observed that the applicant's sentence sat at the upper end of the range, which was not surprising given the viciousness of the attack, the commission of the offence while on parole, and a criminal history that precluded any leniency. The Court was not persuaded that the sentence was manifestly excessive, and dismissed this ground.

Public transport and vulnerability: Johnson J added observations emphasising that the Court of Criminal Appeal has consistently held that crimes of violence on public transport warrant severe punishment, and that persons who must use public transport at night are to be regarded as a vulnerable class deserving the protection of strong sentences. The sentencing judge had applied this principle appropriately.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding of procedural fairness error does not automatically lead to a different sentencing outcome. The Court of Criminal Appeal confirmed that where the error could not realistically have produced a different result, no practical injustice arises and the appeal will not succeed on that ground alone.
  • Cutting a person's throat with a bladed instrument on public transport was assessed as above mid-range in objective seriousness, even though the wound, while serious, did not cause permanent life-threatening consequences.
  • Minor factual errors in a sentencing judgment will not undermine a sentence where those errors have no material bearing on the sentencing findings.
  • Under the principles affirmed in R v JW [2010] NSWCCA 49, persons who regularly use public transport at night are treated as a vulnerable class, and offences of violence committed in those circumstances attract significant weight in both general and specific deterrence.
  • Sentencing statistics establish a useful yardstick against which to examine a proposed sentence, but do not define the outer limits of the sentencing discretion, as confirmed by reference to Barbaro v The Queen [2014] HCA 2 and R v Pham [2015] HCA 39.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery while armed with infliction of grievous bodily harm; maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A (standard non-parole period of seven years for s 98 offence)
- Evidence Act 1995 (Cth), s 4(3)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- R v Pham [2015] HCA 39
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
- Button v R [2010] NSWCCA 264
- Dang v R [2014] NSWCCA 47
- Tweedie v R [2015] NSWCCA 71
- Weir v R [2011] NSWCCA 123
- Mulato v R [2006] NSWCCA 282
- R v Chisari [2006] NSWCCA 19
- R v Ibrahami [2005] NSWCCA 153