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Court of Criminal Appeal 20 February 2019

McDowall v R

[2019] NSWCCA 29

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ALLEGED DISPARITY

Citation: McDowall v R [2019] NSWCCA 29
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2019
Judges: Hoeben CJ at CL, Schmidt J, Adamson J

Background

The applicant and a co-offender committed a series of serious offences across regional New South Wales over four days in December 2015. The offences included multiple counts of aggravated break, enter and steal in company at locations including Murrumbateman, Gundaroo, Gunning, Gundagai and Jugiong, as well as discharging a firearm with intent to resist arrest on two separate occasions, and possession of an unauthorised prohibited firearm.

The two offenders diverged in their specific charges at several points. The applicant was charged with the aggravated form of taking a motor vehicle with assault (armed with an offensive weapon), while the co-offender faced only the non-aggravated version. The applicant was also charged with possessing a prohibited firearm, a charge not laid against the co-offender. Each received an aggregate sentence following pleas of guilty with a 25% discount.

The applicant sought leave to appeal the aggregate sentence imposed by Frearson SC DCJ in the District Court on 25 August 2017. He argued on three grounds: that the sentencing judge erred in failing to make a finding about the objective seriousness of the aggravated motor vehicle offence; that the sentence was manifestly excessive; and that an unjustifiable sentencing disparity existed between his sentence and that of the co-offender.

  • Whether the sentencing judge erred by failing to make an express finding of objective seriousness in relation to the aggravated taking of a motor vehicle offence under s 154C(2) of the Crimes Act 1900 (NSW).
  • Whether the aggregate sentence imposed on the applicant was manifestly excessive.
  • Whether the disparity between the sentences imposed on the applicant and his co-offender gave rise to a justifiable sense of grievance.

Decision

Ground 1: Objective seriousness finding

The Court found no appellable error in the sentencing judge's treatment of the s 154C(2) offence. Although the judge did not use the precise phrase "objective seriousness," the sentencing remarks as a whole demonstrated that the indicative sentence properly reflected the objective gravity of the offence. An express formula is not required; what matters is whether the reasoning, read in context, discloses a proper approach. Ground 1 was not made out.

Ground 3: Manifest excess

The Court considered the applicant's significant criminal history and the aggregate nature of the sentence. Relevant subjective factors, including the applicant's background and mental health, had been taken into account by the sentencing judge, who balanced competing purposes of punishment. The Court found no error and concluded the aggregate sentence was not manifestly excessive. Ground 3 was not made out.

Ground 2: Parity

Because the parity ground proceeds on the assumption that the sentence is otherwise free from error, the Court addressed it last. Drawing on the principles in Lowe v The Queen and Green v The Queen; Quinn v The Queen, the Court noted that differences in sentences between co-offenders must be explicable and not give rise to a justifiable sense of grievance. Here, the differences were explained by the applicant's more serious charge (the aggravated rather than non-aggravated carjacking), his possession of a prohibited firearm, and distinct subjective circumstances. The sentencing judge's detailed reasoning adequately accounted for the divergences. Ground 2 was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to use any particular form of words when assessing objective seriousness, provided the sentencing remarks as a whole reveal that the correct approach was applied.
  • Where co-offenders face different charges, including charges at different levels of aggravation, differences in their indicative and aggregate sentences may be entirely explicable and will not automatically give rise to a justifiable sense of grievance.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that a parity challenge can only succeed if the sentence is otherwise free from error, and that differences in subjective circumstances and in the precise offences charged are legitimate bases for different sentencing outcomes.
  • The sentencing court's obligation when imposing aggregate sentences is to balance the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including cases where factors such as mental health simultaneously reduce moral culpability and increase the need to protect the community, an inherent tension acknowledged in Veen v The Queen (No 2).
  • No error was established in the aggregate sentence despite the complexity of sentencing two co-offenders with overlapping but not identical offence lists and differing personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 7, 21A, 33A, 51B, 112, 154C, 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 53A, 54B, Pt 4 Div 1A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Dinsdale v The Queen (2000) 202 CLR 321
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- McAuliffe v The Queen (1995) 183 CLR 108
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- R v MAK; R v MSK [2006] NSWCCA 381
- R v Tangye (1997) 92 A Crim R 545
- Sharma v R [2017] NSWCCA 85
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No 2) (1988) 164 CLR 465