Citation: Primmer v R [2020] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 25 March 2020
Judge(s): Leeming JA, Harrison J, Hamill J (unanimous)
Background
The respondent, a young man in his early twenties, was sentenced in the District Court at Newcastle for specially aggravated break and enter under s 112(3) of the Crimes Act 1900 (NSW). The offence arose from a plan, conceived on the day, to rob a local drug dealer at his home. The attempt went badly wrong and ended in a gunfight in a suburban street, during which co-offenders fired a weapon and two of them were shot by the occupant.
The respondent was the youngest participant and, on the agreed facts, was recruited by the ringleader and took a lesser role in the planning and execution. He received a sentence of three years imprisonment with an 18-month non-parole period, imposed concurrently with an existing sentence for a domestic violence offence. Three co-offenders, each more deeply involved and each charged with additional armed robbery offences, received substantially longer aggregate sentences.
The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate. Unusually, the respondent conceded the sentence was manifestly inadequate but argued the Court should exercise its residual discretion to decline to intervene.
Legal Issues
- Whether the sentencing judge had failed to properly assess the objective seriousness of a very grave home invasion offence.
- Whether the judge had erred in characterising the respondent's role as "rather minor."
- Whether the non-parole period failed to reflect the objective seriousness of the offence.
- Whether, even if error were established, the Court should exercise its residual discretion to dismiss the prosecution appeal and decline to resentence.
Decision
Hamill J (with Leeming JA and Harrison J agreeing) accepted that errors had been made at the sentencing hearing. The sentencing judge had made a global finding about objective seriousness in relation to the co-offenders without making a sufficiently clear separate finding for the respondent, and had inadequately reasoned through the respondent's role. The respondent's own concession of manifest inadequacy was noted as proper and sensible.
Despite finding error, the Court turned to whether it should exercise the residual discretion available on prosecution appeals, a discretion applied with particular care given the double jeopardy considerations that arise when an offender faces resentencing at the prosecution's initiative. The Court examined the respondent's subjective circumstances in detail. These included a severely deprived and dysfunctional upbringing, significant substance abuse history, diagnosed ADHD and depression, the fact he was only 22 years old at the time of the appeal, and a compelling affidavit in which he acknowledged the leniency of his sentence and articulated realistic plans for rehabilitation.
A particularly significant factor was that the respondent was due for release in August 2020, only weeks after his daughter's third birthday, having already missed her first two birthdays. He had concrete post-release plans, including relocating away from negative influences, seeking employment, and maintaining drug-free conditions required by Family and Community Services for access to his daughter. The Court found that the interference these plans would suffer from any substantial increase in sentence weighed heavily in favour of non-intervention.
Taking all these matters together, the Court was not satisfied this was an appropriate case to increase the sentence. The residual discretion was exercised to dismiss the appeal.
Orders Made
The Director of Public Prosecutions' appeal was dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a respondent's concession of manifest inadequacy does not automatically result in resentencing; the appellate court retains a residual discretion to decline to interfere even where error is established.
- The residual discretion on prosecution appeals engages double jeopardy principles and requires close attention to the offender's subjective circumstances, including progress toward rehabilitation and the disruption that resentencing would cause to post-release plans.
- A powerful subjective case, including a background of severe deprivation and dysfunctional family life, can support the exercise of residual discretion even in a case involving a very serious offence carrying a maximum of 25 years imprisonment.
- Where a sentencing judge makes a global finding on objective seriousness in proceedings involving co-offenders, the failure to make a sufficiently clear separate finding for the individual offender may constitute error, regardless of whether the ultimate sentence is challenged as excessive or inadequate.
- Consistent with Bugmy v The Queen (2013) 249 CLR 571, the mitigating weight of profound deprivation and disadvantage is not diminished by the gravity of the offence, and appellate courts must account for it when considering whether to resentence on a prosecution appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 32, 54A(2)
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- House v The King (1936) 55 CLR 499
- Carroll v The Queen [2009] HCA 13; 254 ALR 379
- R v Carroll, Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Abbas & Others v R [2013] NSWCCA 115; 231 A Crim R 413
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- BM v R [2019] NSWCCA 223
- Tepania v R [2018] NSWCCA 247
- R v AA [2017] NSWCCA 84
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Millwood [2012] NSWCCA 2