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Court of Criminal Appeal 13 July 2022

DS v R; DM v R

[2022] NSWCCA 156

Also reported as (2022) 109 NSWLR 82
Assault & violenceHomicideTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL TWO JUVENILE OFFENDERS DM AND DS OFFENCES INCLUDED ON FORM 1 MORAL CULPABILITY REDUCED LONG SENTENCES IMPOSED

Citation: DS v R; DM v R [2022] NSWCCA 156
Court: Court of Criminal Appeal, NSW
Date: 13 July 2022
Judge(s): Beech-Jones CJ at CL, N Adams J, Cavanagh J

Background

Two juvenile offenders, referred to as DS and DM, pleaded guilty to murder and aggravated taking and driving of a motor vehicle without the owner's consent while the owner was present. DM additionally pleaded guilty to robbery with wounding while armed with an offensive weapon and wounding with intent to cause grievous bodily harm. All offences were committed over one night in Queanbeyan on 6 to 7 April 2017.

The central events involved the fatal stabbing of a service station attendant during a robbery. DM carried out the stabbing; DS participated in the robbery. Both were held liable for constructive murder. A further offence involving the carjacking of a motorist occurred in the early hours of the following morning. At the time of the offences, DM was 16 years and 8 months old and DS had just turned 15. Both had dysfunctional upbringings and mental health issues, and the sentencing judge found that each offender's moral culpability was reduced.

At first instance, Bellew J sentenced DS to an aggregate 18 years and 4 months (including 15 years and 4 months for murder) and DM to an aggregate 35 years and 6 months (including 31 years and 6 months for murder). Both sought leave to appeal, arguing the sentences were excessive and that the sentencing judge had made a series of legal errors.

  • Whether an offender's moral culpability forms part of the assessment of the objective seriousness of their offending
  • Whether the sentencing judge erroneously assessed DS's objective seriousness by reference to DM's conduct rather than DS's own offending
  • Whether the sentencing judge erred in moderating the mitigating weight of DS's youth by reference to the extreme violence involved
  • Whether the sentencing judge erred in finding no evidence that DS's immaturity was a significant factor in the offending
  • Whether the sentencing judge failed to give practical effect to a finding of special circumstances in DS's case
  • Whether the sentencing judge correctly assessed the objective seriousness of DM's murder as substantially above the mid-range
  • Whether the sentencing judge adequately applied sentencing principles relating to DM's youth and Indigenous background (the Bugmy and Fernando considerations)
  • Whether parity between DS's and DM's sentences was appropriately maintained
  • Whether the sentences imposed on each offender were manifestly excessive

Decision

Common issue: moral culpability and objective seriousness

The Court confirmed that "objective seriousness" and "moral culpability" are separate but related sentencing concepts. Objective seriousness involves an objective assessment of the crime itself and matters causally related to it. Moral culpability concerns the offender's blameworthiness and may draw on a wider range of subjective factors. An offender's reduced moral culpability does not lower the objective seriousness of the offence.

DS's appeal

The Court found that the sentencing judge erred by assessing the objective seriousness of DS's offences by reference to DM's conduct. The correct approach was to sentence DS for the offences he actually committed, on the basis of his own criminal liability. A further error arose from the sentencing judge's failure to give practical effect to a finding of special circumstances, which the Court held created an obligation to consider resentencing. No error was established, however, in the sentencing judge's treatment of DS's youth or in the judge's conclusion that DS's immaturity was not shown to have been a significant contributing factor. The Court also observed that the sentence imposed for the take-and-drive offence appeared excessive when compared to the standard non-parole period applicable to adult offenders, though the Court found it unnecessary to decide manifest excess formally given the other errors.

DM's appeal

The Court found no error in the sentencing judge's assessment of the objective seriousness of DM's murder as substantially above the mid-range. Challenges to the judge's descriptions of the offending as involving "gratuitous violence" and being "cold blooded" were rejected as untenable. No individual errors were established in the treatment of DM's youth. On the Bugmy and Fernando considerations, the structure of the sentencing judge's reasons supported the inference that those principles were taken into account, though the overall sentences were found to be well in excess of what the objective seriousness of the offending warranted, and parity considerations supported a reduction. Both appeals were allowed and both offenders were resentenced.

Orders Made

DS:
- Leave to appeal granted; appeal allowed
- Original sentence set aside and replaced with an aggregate term of 14 years and 6 months' imprisonment commencing 7 April 2017 and expiring 6 October 2031
- Non-parole period of 10 years set, expiring 6 April 2027 (earliest parole eligibility: 7 April 2027)
- Indicative sentences: 13 years and 6 months for murder; 3 years for the aggravated take-and-drive offence
- To serve sentence as a juvenile offender until attaining 21 years of age (pursuant to s 19, Children (Criminal Proceedings) Act 1987)
- Advised of the Crimes (High Risk Offenders) Act 2006

DM:
- Leave to appeal granted; appeal allowed
- Original sentence set aside and replaced with an aggregate term of 27 years' imprisonment commencing 7 April 2017 and expiring 6 April 2044
- Non-parole period of 20 years and 7 months set, expiring 6 November 2037 (earliest parole eligibility: 7 November 2037)
- Indicative sentences: 20 years and 8 months for murder; 7 years and 2 months for robbery with wounding while armed; 7 years and 2 months for wounding with intent to cause grievous bodily harm; 4 years for the aggravated take-and-drive offence
- Advised of the Crimes (High Risk Offenders) Act 2006

Key Takeaways

  • Objective seriousness and moral culpability are distinct concepts in NSW sentencing: a finding that an offender's moral culpability is reduced does not affect the objective seriousness of the offence itself, which is assessed independently.
  • Where multiple offenders are sentenced for the same crime, the objective seriousness of each offender's conduct must be assessed by reference to that offender's own acts and criminal liability, not by reference to a co-offender's more culpable conduct.
  • A sentencing judge's failure to give practical effect to a finding of special circumstances constitutes a legal error that ordinarily triggers a resentencing obligation.
  • No error was established in the sentencing judge's decision to moderate the mitigating weight of a juvenile offender's youth where that offender bore criminal liability for extreme violence, or in a finding that immaturity was not shown to have materially contributed to the offending.
  • In resentencing both appellants, the Court of Criminal Appeal reduced the aggregate sentences substantially: DS from 18 years and 4 months to 14 years and 6 months, and DM from 35 years and 6 months to 27 years, reflecting the combined effect of the identified errors and parity considerations.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Evidence Act 1995 (NSW)

Key Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hoare v The Queen (1989) 167 CLR