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Court of Criminal Appeal 24 July 2019

Nean v R

[2019] NSWCCA 164

Assault & violenceTheft & propertyTraffic & drivingFirearms & weapons
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE USE OF WEAPONS POLICE PURSUIT ENSUED BACKDATING OF SENTENCES

Citation: Nean v R [2019] NSWCCA 164
Court: Court of Criminal Appeal, NSW
Date: 24 July 2019
Judges: Leeming JA, R A Hulme J, Davies J (Davies J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court to four counts of robbery in company and one count of police pursuit, with a steal motor vehicle offence taken into account on a Form 1. The offending arose from a single violent criminal enterprise one evening in September 2016, when the applicant and co-offenders entered a property in Quirindi and committed a series of armed robberies against multiple occupants, including two minors. Weapons including a knife and a screwdriver were used throughout, and threats to kill were made. The offenders then stole a vehicle from one of the victims and fled, leading to a police pursuit.

The District Court imposed an aggregate sentence of eight years and nine months' imprisonment, commencing 25 March 2017, with a non-parole period of five years. The applicant appealed on several grounds, most significantly arguing that the sentencing judge miscalculated the period of pre-sentence custody referable solely to the index offences, misapplied the principles from Bugmy v The Queen, and incorrectly assessed his criminal antecedents. A co-offender, Hampton, received an aggregate sentence of seven years and four months with a four-year non-parole period, having been sentenced three days later.

  • Whether the sentencing judge erred in calculating the period of pre-sentence custody solely referable to the index offences, affecting the commencement date of the sentence
  • Whether the sentencing judge misapplied the Bugmy principles regarding the mitigating weight to be given to the applicant's deprived and violent upbringing
  • Whether the sentencing judge incorrectly assessed the applicant's criminal antecedents
  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of his co-offender Hampton

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, but solely on the ground relating to the commencement date of the sentence. The Court found that the sentencing judge had erred in calculating the period during which the applicant was in custody referable only to the index offences. As a result, the commencement date was adjusted from 25 March 2017 to 1 February 2017, reducing the applicant's effective time in custody before the sentence formally commenced.

On the Bugmy ground, the Court confirmed the well-established principle that the mitigating effect of a deprived background does not diminish simply because an offender has a long criminal history. Davies J accepted this as applicable here. However, the Court found that the sentencing judge had in fact applied the Bugmy principles correctly and that no error was established on this ground.

The challenge to the assessment of criminal antecedents also failed. The Court found no appellable error in the manner the sentencing judge had treated the applicant's prior offending history, including in assessing the prospects of rehabilitation, which were assessed as poor.

On the co-offender disparity ground, the Court accepted that the primary differentiating factor between the two sentences was the significantly larger guilty plea discount available to Hampton, whose pleas attracted around 25 per cent. The subjective circumstances of each offender were broadly similar, with comparable backgrounds involving exposure to violence, alcohol and drug abuse from an early age. The Court found no proper basis to distinguish the two in terms of notional starting points, and no lesser aggregate sentence was warranted for the applicant.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge McLennan SC in the District Court on 30 April 2018 quashed
  • Aggregate sentence of 8 years and 9 months' imprisonment substituted, commencing 1 February 2017 and expiring 31 October 2025, with a non-parole period of 5 years expiring 31 January 2022

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must accurately identify the period of pre-sentence custody that is solely referable to the index offences before setting the commencement date; an error in that calculation constitutes a ground for adjusting the sentence on appeal.
  • The Bugmy principle that a deprived and violent upbringing retains its mitigating weight throughout an offender's life, regardless of subsequent criminal history, was reaffirmed. However, the sentencing judge had applied this correctly and no error was established on the facts.
  • Disparity between co-offender sentences does not automatically give rise to a justifiable sense of grievance where the difference is adequately explained by objective factors, here the significantly greater guilty plea discount available to the co-offender.
  • Special circumstances were found to exist, justified by the risk of institutionalisation and the need for a longer period on parole to assist rehabilitation, notwithstanding the court's pessimistic assessment of the applicant's prospects.
  • A re-sentence that results in the same aggregate term but an earlier commencement date is a permissible outcome where the only established error concerns the backdating calculation rather than the length of the sentence itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B (police pursuit), 97 (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Turnbull v R [2019] NSWCCA 97