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57
Court of Criminal Appeal 21 August 2020

Dungay v R

[2020] NSWCCA 209

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE ROBBERY IN COMPANY ERROR ESTABLISHED MANIFEST EXCESS

Citation: Dungay v R [2020] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 21 August 2020
Judges: Bell P, Davies J, N Adams J (all agreeing)

Background

The appellant was a 25-year-old Aboriginal man sentenced in the District Court at Lismore on 27 May 2019 following a late guilty plea to three serious offences: aggravated break, enter and steal; and two counts of robbery in company. The offending, which spanned 2016 and 2017, involved the appellant and co-offenders entering or smashing into clubs and hotels shortly before closing, armed with knives and wearing disguises, and stealing cash as staff were securing it. A total of $79,803 was stolen across the offences. Four additional matters (three conspiracies to commit robbery in company and one count of dealing with proceeds of crime) were taken into account on a Form 1.

The sentencing judge imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The appellant's two co-offenders were sentenced at the same time: one received the same aggregate term, while the other received 14 years and 6 months with a non-parole period of 10 years.

The appellant sought leave to appeal on three grounds: that the sentencing judge wrongly admitted and relied upon his Children's Court criminal history; that the sentence was manifestly excessive given his youth, background, and personal circumstances; and that he had a justifiable sense of grievance when comparing his sentence with that of the more heavily sentenced co-offender.

  • Whether the sentencing judge erred by admitting and having regard to the appellant's Children's Court criminal history, in light of the restrictions under the Children (Criminal Proceedings) Act 1987 (NSW)
  • Whether the aggregate sentence of 12 years (NPP 8 years) was manifestly excessive, with particular regard to the appellant's youth, history of deprivation and dysfunction, and the Bugmy principles
  • Whether the difference between the appellant's sentence and that of the more heavily sentenced co-offender gave rise to a justifiable sense of grievance (the parity principle)

Decision

Ground One: Children's Court criminal history

The Crown conceded that error was established on this ground. The sentencing judge had regard to the appellant's Children's Court criminal history in a manner inconsistent with the restrictions in the Children (Criminal Proceedings) Act 1987 (NSW). This concession was properly made, and the Court proceeded to re-sentence on that basis.

Ground Two: Manifest excess and Bugmy principles

The Court found the sentence was manifestly excessive when proper weight was given to the appellant's subjective circumstances. Applying the principles in Bugmy v The Queen (2013) 249 CLR 571, the Court held that the appellant's deprived and dysfunctional childhood, as an Aboriginal man, required genuine consideration and was not diminished in significance simply because time had passed. The Court also noted that the appellant had no significant criminal record before these offences, had mental health issues, demonstrated remorse, and had reasonable prospects of rehabilitation. A 10% discount was applied to the indicative sentences to reflect a greater degree of notional concurrence.

Ground Three: Parity

The Court considered the parity argument in light of the differences between the appellant and the more heavily sentenced co-offender. Having already found error warranting re-sentence, the Court addressed parity in the context of determining the appropriate new sentence rather than as a standalone basis for further reduction. The re-sentencing exercise resulted in an aggregate term lower than that originally imposed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 27 May 2019 quashed
  • Aggregate sentence of 10 years imprisonment imposed, commencing 28 June 2017 and expiring 27 June 2027, with a non-parole period of 6 years and 6 months, expiring 27 December 2023
  • Indicative sentences:
  • Count 1 (aggravated break, enter and steal): 5 years and 6 months, NPP 3 years and 8 months
  • Count 2 (robbery in company): 5 years and 5 months
  • Count 3 (robbery in company, including four Form 1 matters): 6 years and 6 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court errs by admitting and relying on an offender's Children's Court criminal history where the Children (Criminal Proceedings) Act 1987 (NSW) restricts such use; the Crown's concession on this point was accepted without contest.
  • Applying Bugmy v The Queen, the Court affirmed that a history of profound deprivation and dysfunction in childhood does not diminish in its relevance to sentencing with the passage of time, and must be given genuine weight when assessing moral culpability.
  • Where error is established and re-sentencing is required, the parity principle falls to be addressed as part of the overall re-sentencing exercise rather than necessarily as an independent ground producing a separate reduction.
  • A late guilty plea, absence of a significant prior record, remorse, and reasonable rehabilitation prospects each remained relevant mitigating factors, even where the objective criminality was serious and sustained.
  • The decision illustrates how cumulative error in a sentencing judgment (including improper use of restricted criminal history and insufficient weight to Bugmy considerations) can produce a sentence the appellate court finds manifestly excessive, warranting a reduction of two years in the head sentence and 18 months in the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 14, 15, 33

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Crowley v R [2017] NSWCCA 99
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Huckstadt v R [2016] NSWCCA 22
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Ingrey v R [2016] NSWCCA 31
- Judge v R [2018] NSWCCA 203
- Katsis v R [2018] NSWCCA 9
- Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- KT v R [2008] NSWCCA 51
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nabalarua v R [2020] NSWCCA 68
- Perkins v R [2018] NSWCCA 62
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v DM [2005] NSWCCA 181
- R v Fernando (1992) 76 A Crim R 58