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Court of Criminal Appeal 24 June 2019

R v Irwin

[2019] NSWCCA 133

DrugsTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE OBJECTIVE SERIOUSNESS INDICATIVE SENTENCES

Citation: R v Irwin [2019] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 24 June 2019
Judges: Simpson AJA, Walton J, Adamson J

Background

The respondent pleaded guilty to 10 substantive charges and asked that a further 6 charges be taken into account on three Form 1s. The offences fell into four categories: drug and drug-related offences, firearms offences, dangerous police pursuit offences, and possession of prohibited weapons. All offences were committed while the respondent was on parole and subject to both a Firearms Prohibition Order and a Weapons Prohibition Order.

The offences were serious in nature. Police searching the respondent's residence found a loaded, shortened 12-gauge shotgun under a bed, ammunition, cocaine, cannabis, MDMA and testosterone, as well as cash reasonably suspected to be proceeds of crime. On two separate occasions in September 2017, the respondent failed to stop for police and drove dangerously, including at speed and through red lights.

The District Court imposed an aggregate head sentence of 4 years imprisonment with a non-parole period of 2 years and 8 months, applying a 25% discount for guilty pleas. The Crown appealed on the single ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence imposed by the District Court was manifestly inadequate
  • Whether the sentencing judge made identifiable errors in the sentencing process, including errors regarding maximum penalties, indicative sentences, concurrence, totality, and the application of the Bugmy principles
  • Whether, if the appeal were allowed, there was any discretionary reason to refrain from resentencing

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal, finding the aggregate sentence manifestly inadequate. Walton J identified a series of errors in the sentencing process, including misstated maximum penalties for certain sequences, the selection of indicative sentences that did not adequately reflect the objective seriousness of the offending, and excessive concurrence in accumulation. Simpson AJA agreed with that analysis and with the overall result.

A notable issue arose concerning the sentencing judge's treatment of the Bugmy principles. The sentencing judge expressly declined to apply those principles, which address how a history of profound childhood deprivation and disadvantage must be considered in sentencing. The Court confirmed that applying the Bugmy principles is not a matter of discretion. The High Court in Bugmy v The Queen held that the effects of profound childhood deprivation do not diminish with the passage of time or repeated offending, meaning courts must give full weight to a deprived background in every sentencing decision. The sentencing judge's refusal to apply the principles was an error, though the Court noted it may have supported a severity appeal rather than the Crown's appeal.

Adamson J observed that manifest inadequacy may arise either from a discernible error in the sentencing process or simply from the result itself. Her Honour found the aggregate sentence plainly inadequate to reflect the totality of the offending and its objective seriousness, regardless of which specific error caused the outcome. The Court found no discretionary reason to withhold resentencing: there was no delay in the Crown filing its appeal, and an adequate sentence needed to be imposed to reflect conduct that included dangerous police pursuits putting the public at serious risk, as well as firearms possession indicating a readiness for violence.

The Court resentenced the respondent to a higher aggregate sentence, noting that while the respondent's background might explain the path that led to his offending, it did not excuse it.

Orders Made

• Quash the sentence imposed by English DCJ on 14 December 2018
• Sentence the respondent to an aggregate term of imprisonment of 7 years commencing on 17 May 2018 and concluding on 16 May 2025
• Non-parole period of 4 years 8 months concluding on 16 January 2023
• Indicative sentences for each sequence of offence:
- Sequence 1: 6 months
- Sequence 4: 18 months
- Sequence 8: 4 years 6 months
- Sequence 11: 3 years
- Sequence 13: 18 months
- Sequence 14: 2 years
- Sequence 15: 2 years
- Sequence 16: 3 years with non-parole period of 2 years
- Sequence 18: 4 years with non-parole period of 2 years 8 months
- Sequence 20: 3 years

Key Takeaways

  • The Court of Criminal Appeal confirmed that applying the Bugmy principles, which require full weight to be given to an offender's history of profound childhood deprivation in every sentencing decision, is not a matter of judicial discretion. A sentencing judge who expressly declines to apply them commits an error.

  • Manifest inadequacy of an aggregate sentence can be established either by identifying specific errors in the sentencing process or by inference from the result itself, as articulated by the High Court in Dinsdale v The Queen.

  • Where a sentencing judge misstates the maximum penalty applicable to an offence, this constitutes an identifiable error capable of vitiating the exercise of the sentencing discretion.

  • In allowing a Crown appeal and resentencing, the Court acknowledged that the educative purposes of Crown appeals should not overshadow the need to impose an adequate sentence where the offending is serious and the public interest demands it.

  • Possession of a loaded shortened firearm was characterised as indicating a readiness for violence, particularly in the context of drug supply, and the two dangerous police pursuits were treated as having placed the public at significant risk, with serious injury avoided only by chance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Drug Court Act 1998 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Baxter v R [2018] NSWCCA 281
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293
- Ayshow v R [2011] NSWCCA 240
- Bungie v R [2015] NSWCCA 9
- Buxton v R [2017] NSWCCA 169
- Edwards v R [2017] NSWCCA 160
- El Jamal v R [2017] NSWCCA 243
- Gardener v R [2015] NSWCCA 170
- Greentree v R [2018] NSWCCA 227
- Herod v R [2010] NSWCCA 17
- JL v R [2014] NSWCCA 130
- Judge v R [2018] NSWCCA 203
- Katsis v R [2018] NSWCCA 9