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Court of Criminal Appeal 17 May 2017

Dowling v R

[2017] NSWCCA 98

Assault & violenceTraffic & driving
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE HELD APPEAL DISMISSED

Citation: Dowling v R [2017] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 17 May 2017
Judges: Leeming JA, Adamson J, Wilson J

Background

The applicant pleaded guilty to three offences arising from a single episode on 17 May 2014: aggravated robbery, aggravated assault with intent to take a motor vehicle, and failing to stop during a police pursuit while driving at dangerous speed. The offending involved a prolonged and violent ordeal in which the applicant produced a knife, seriously assaulted a taxi driver, stole his vehicle and money, and drove the victim along the Pacific Highway at speeds exceeding 180 km/h before police brought the vehicle to a stop using tyre deflation devices.

Ellis DCJ sentenced the applicant in the District Court on 3 September 2015. The total effective sentence was 8 years' imprisonment commencing 17 May 2014, with a non-parole period of 5 years. The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge had proceeded on an incorrect factual basis.

  • Whether the total effective sentence of 8 years was manifestly excessive
  • Whether the sentencing judge proceeded on an incorrect factual basis, in particular by relying on facts to which the applicant had agreed as part of his guilty plea
  • Whether the applicant's proposed reduction of the total sentence and non-parole period was consistent with the sentencing methodology of instinctive synthesis

Decision

The Court of Criminal Appeal dismissed the appeal. Adamson J (with Leeming JA and Wilson J agreeing) found no error in the sentencing judge's approach either to the individual sentences or to the total effective sentence.

On the factual basis point, the Court confirmed that an agreed statement of facts forms part of a plea of guilty. An offender who pleads guilty on the basis of agreed facts cannot subsequently challenge the sentencing court's reliance on those facts as an error.

On the manifest excess argument, the applicant contended that the total sentence should be reduced to 6 years with a non-parole period of 3 years, reasoning that because the offending episode lasted just over three hours, no more than three years' custody was warranted. The Court rejected this approach as incompatible with the doctrine of instinctive synthesis, which requires a sentencing judge to weigh all objective and subjective factors holistically rather than applying a mechanical or mathematical formula.

The Court noted that the sentencing judge had made several findings in the applicant's favour, including genuine remorse, reduced moral culpability due to his childhood circumstances, and significant rehabilitation efforts between arrest and sentence. His Honour had also declined to treat the serious psychological impact on the victim as an aggravating factor beyond what would normally be expected from such offending. Taking into account the criminal history, the fact that the applicant was on parole at the time, and the maximum penalties as legislative guideposts, the Court found the sentences were within the proper range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An agreed statement of facts submitted as part of a guilty plea is properly relied upon by a sentencing court; an applicant cannot later contest those facts on appeal as an incorrect factual basis.
  • The Court of Criminal Appeal confirmed that the instinctive synthesis methodology requires a holistic weighing of all sentencing factors. A mathematical reduction based on the duration of an offending episode does not constitute a valid sentencing approach.
  • Maximum penalties serve as legislative guideposts indicating the seriousness with which Parliament regards an offence, and a sentencing court must have regard to them alongside both objective and subjective circumstances.
  • In dismissing the appeal, the Court accepted that a sentencing judge may decline to treat victim harm as an aggravating factor where the harm, though substantial, is not shown to exceed what would ordinarily be expected from offences of that type.
  • No error was established in the structure of the cumulative and concurrent sentences, or in the resulting total effective sentence of 8 years.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 2012 (NSW), s 5
- Crimes Act 1900 (NSW), ss 51B, 95, 154C
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- CL v R [2014] NSWCCA 196
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Crowley [2004] NSWCCA 256