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Court of Criminal Appeal 10 April 2015

Johan v R

[2015] NSWCCA 58

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Johan v R [2015] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 10 April 2015
Judges: Leeming JA at [1]; Simpson J at [3]; Schmidt J at [29]

Background

The appellant was an Aboriginal man, then aged 17 turning 18, who pleaded guilty to four armed robberies under s 97(2) of the Crimes Act 1900 (NSW), one specially aggravated break and enter with intent, and one count of unlicensed firearm possession. The offences occurred across a three-week period in late December 2011 and January 2012, while he was on parole for a prior robbery in company. A loaded rifle was used or in his possession during the offending.

The appellant's background was one of extraordinary deprivation. He was removed from his mother's care before the age of two, experienced abuse in foster placements, was never employed, held a disability pension due to mild intellectual disability, and had accumulated multiple diagnoses including PTSD, ADHD, and reactive attachment disorder. Since the age of 13 he had spent approximately 18 months in total at liberty.

In the District Court, Ellis DCJ imposed an aggregate sentence with a total non-parole period of 6 years and 6 months and a head sentence of 10 years and 6 months. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and failed to give adequate weight to his age and background.

  • Whether the sentencing judge failed to give appropriate weight to the appellant's age and Indigenous background when assessing his moral culpability
  • Whether the resulting sentence was manifestly excessive, having regard to the sentencing range indicated in R v Henry [1999] NSWCCA 111 for s 97(2) offences

Decision

On the first ground, the Court found no error in the sentencing judge's treatment of the appellant's age and background. His Honour expressly acknowledged the reports before him, described the upbringing as one it was "difficult to imagine anything worse", and noted the principles applicable to young offenders under the Children (Criminal Proceedings) Act 1987 (NSW). Simpson J, while acknowledging the genuine tension between the profound mitigating circumstances and the seriousness of the offending, ultimately agreed with Schmidt J that the sentencing judge had not failed to take those matters into account.

On the second ground, the Court acknowledged that the undiscounted starting points for the two most serious counts (8 years) sat considerably higher than the 4 to 5 year range discussed in R v Henry. However, Leeming JA and Schmidt J held that Henry was directed to a different and less serious category of offence, where small amounts are taken by young offenders with little or no criminal history. The appellant's circumstances were materially different: he was armed with a loaded rifle, the stolen amounts were not small, he had a lengthy criminal history, and all offending occurred while on parole.

Schmidt J emphasised that the overall result was considerably more lenient than a strict accounting of the separate criminality might have produced. The sentence reflected appropriate regard for rehabilitation prospects and the appellant's youth and background, while still recognising the harm caused to numerous victims. No appellable error was established on either ground.

Simpson J expressed some reservations about the height of the starting points, but ultimately concurred in dismissal. The Court unanimously granted leave but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that R v Henry does not set a universal sentencing range for all s 97(2) armed robbery offences. The range stated in that case was directed at a narrow, less serious category of offence and does not constrain sentencing where the objective facts are materially more serious.
  • A sentencing judge's acknowledgment of deprived background and Indigenous identity does not require detailed extraction of those circumstances into the sentencing remarks, provided the judge demonstrates close consideration of the relevant reports.
  • Under Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58, a history of profound deprivation warrants mitigation in an appropriate case, but that mitigation must be balanced against the harm caused to victims, particularly in offences involving violence, as reinforced by Munda v Western Australia (2013) 249 CLR 600.
  • Offending committed while on parole for serious offences, using loaded weapons, across multiple victims and incidents, can justify a departure from benchmark sentencing ranges even where the offender is young and has significant subjective mitigating factors.
  • No appellate jurisdiction exists to reduce a non-parole period to a point where the resulting sentence would be inappropriately lenient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) and 97(2)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)
- Victims Support and Rehabilitation Act 1996 (NSW) (Repealed)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Fernando (1992) 76 A Crim R 67
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Alvares v The Queen [2011] NSWCCA 33; (2011) 209 A Crim R 297
- KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571
- IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150