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Court of Criminal Appeal 31 March 2021

Dawson v R

[2021] NSWCCA 53

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL NO JUSTIFIED SENSE OF GRIEVANCE APPEAL DISMISSED.

Citation: Dawson v R [2021] NSWCCA 53
Court: Court of Criminal Appeal, NSW
Date: 31 March 2021
Judges: Hoeben CJ at CL (lead judgment); Rothman J (separate reasons); Bellew J (agreeing)

Background

The appellant pleaded guilty in the District Court to two offences of aggravated break, enter and commit a serious indictable offence (intimidation) under s 112(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years imprisonment. The offences involved forcing entry into two separate residential units in a Housing Department block, confronting and threatening the occupants, and causing property damage. The appellant committed both offences while on parole.

The appellant was sentenced by Judge Harris in the Parramatta District Court to a total effective sentence of four years and one month, with a non-parole period of two years and seven months. His co-offender, who had instigated the incidents by falsely claiming one of the residents had assaulted her, was sentenced for one of the same offences (and a lesser offence in relation to the second incident), receiving a total effective sentence of two years and four months with a non-parole period of one year and seven months.

The appellant sought leave to appeal on three grounds: that the sentencing judge failed to apply principles from Bugmy v The Queen and R v Fernando regarding the effect of disadvantaged background on Indigenous offenders; that the judge failed to give reasons on those principles; and that his sentence was unjustifiably heavier than that of his co-offender.

  • Whether the sentencing judge erred by failing to apply the principles in Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58 regarding the sentencing of offenders from backgrounds of deprivation or disadvantage.
  • Whether the sentencing judge was required to give reasons addressing those principles even where they had not been raised by the parties at the sentence hearing.
  • Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance warranting appellate intervention.

Decision

Grounds 1A and 1B: Bugmy and Fernando principles

Hoeben CJ at CL refused leave on both Bugmy-related grounds. The principles in Bugmy and Fernando were not raised before the sentencing judge, and crucially, the appellant's background did not engage those principles in any case. The evidence before the sentencing judge did not establish the kind of profound childhood deprivation or disadvantage that would require consideration of Bugmy. A sentencing judge cannot be in error for failing to consider principles that were neither argued nor triggered by the evidence.

Rothman J added that the appellant's childhood was not deprived or problematic in any relevant sense. While the appellant's father had modelled violent behaviour, this did not normalise violence in the appellant's mind, and the appellant himself understood such conduct to be unacceptable. This further confirmed that Bugmy considerations simply did not arise.

Ground 2: Parity

Hoeben CJ at CL found no justifiable sense of grievance. The co-offender's lesser sentence was explained by meaningful differences in their respective positions: the co-offender was convicted of only one of the two break-and-enter offences (facing a lesser charge for the second incident), had a less serious criminal history, and bore different subjective circumstances. Those distinctions justified the differential in sentence.

Rothman J reached the same outcome but by a notably different path. He accepted that the appellant did have a justifiable sense of grievance, and he observed that the co-offender's sentence appeared manifestly inadequate, possibly reflecting a statistically demonstrated pattern of courts treating female offenders more leniently, which he described as inappropriate. However, citing R v Tisalandis and Lowe v The Queen, he concluded that striving for parity in the circumstances would require imposing a wholly inadequate sentence on the appellant, which the Court would not do. He characterised the appellant's sentence as sitting at the bottom of the available range.

Orders Made

  • Leave to rely on Grounds 1A and 1B refused.
  • Leave to appeal on Ground 2 granted, but the appeal dismissed.

Key Takeaways

  • A sentencing judge does not err by failing to consider Bugmy v The Queen principles where those principles were not raised by the parties and the evidence does not establish the relevant background of deprivation or disadvantage.
  • Under the parity principle, a difference in sentences between co-offenders does not automatically give rise to a justifiable sense of grievance: differences in the offences charged, criminal histories, and subjective circumstances can legitimately explain the disparity.
  • Even where an appellate court considers a co-offender's sentence to be manifestly inadequate, it will not reduce an otherwise appropriate sentence merely to achieve parity, as doing so would result in an unjustifiably lenient outcome.
  • Rothman J's separate reasons raise a pointed concern that sentencing courts should not treat co-offenders differently on the basis of gender, and that statistical patterns of more lenient treatment of female offenders are inappropriate.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appellant's sentence sat at the lower end of the available range, leaving no basis for further reduction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60, 61, 112, 546C
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Tisalandis [1982] 2 NSWLR 430
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Youkhana v R [2011] NSWCCA 37
- Chamon v R [2020] NSWCCA 112
- Kliendienst v R [2020] NSWCCA 98
- McDowall v R [2019] NSWCCA 29
- Huckstadt v R [2016] NSWCCA 22
- Palijan v R [2010] NSWCCA 142
- R v Maher [2004] NSWCCA 177