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Court of Criminal Appeal 29 May 2023

Jackson v R

[2023] NSWCCA 121

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEAL APPEAL AGAINST SENTENCE MANIFEST EXCESS TOTALITY STALE OFFENCE

Citation: Jackson v R [2023] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 29 May 2023
Judges: Leeming JA at [1]; Rothman J at [3]; McNaughton J at [75]

Background

The applicant pleaded guilty to two serious offences committed on 25 October 2001: aggravated armed robbery (using a shortened rifle) contrary to s 97(2) of the Crimes Act 1900 (NSW), and discharging a loaded firearm with intent to resist lawful apprehension contrary to s 33A. The offending arose from a jewellery store robbery in Erina, NSW, during which the applicant pointed a rifle at staff, including a 15-year-old, and later fired a warning shot at an off-duty police officer who pursued the getaway vehicle. Cash and jewellery worth approximately $56,700 in total was stolen.

The offences were not charged until decades later. Police linked the applicant to the crime through DNA analysis of a balaclava in 2017 (matched to a co-offender who then identified the applicant) and further DNA analysis of a jacket in 2022, supplemented by recordings from lawfully-placed listening devices. The applicant was sentenced in the District Court on 5 October 2022, more than 21 years after the offences.

The sentencing judge (Abadee DCJ) imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years and 6 months, backdated by 3 years and 3 months so that it ran wholly concurrently with an existing sentence. The applicant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the aggregate sentence of 10 years' imprisonment with a 6.5-year non-parole period was manifestly excessive in all the circumstances.
  • Whether the sentencing judge properly applied the principles from Bugmy v The Queen (2013) 249 CLR 571 concerning the mitigating weight to be given to severe childhood disadvantage and its connection to offending.
  • Whether the sentencing judge gave adequate weight to the staleness of the offences, the applicant's ongoing serious mental illness, and the totality and parity considerations arising from the concurrent sentence structure.

Decision

All three judges agreed that the sentence was manifestly excessive and that the Court's intervention was warranted, though each provided concise reasons. The Court emphasised at the outset that there is no single correct sentence, that the sentencing discretion is broad, and that intervention on the ground of manifest excess requires the inference that the sentencing discretion has miscarried. The ground raised was manifest excess alone, not any patent error in the exercise of the discretion.

Leeming JA identified a combination of factors that made the 10-year sentence appear very high when considered alone: both offences arose from a single course of conduct; the applicant suffered very considerable childhood disadvantage with a direct relationship to the crimes; he had ongoing mental illness; and there were indications of steps toward rehabilitation. His Honour acknowledged the Crown's point that the sentence was backdated by more than three years, making it wholly concurrent with an earlier sentence, and cautioned that sentencing statistics must not be compared in isolation for that reason.

Rothman J, whose reasons set out the background and legal analysis in full, noted that the case involved a complex interaction of factors: Bugmy considerations arising from institutional abuse and deprivation in childhood, related drug addiction (in remission), serious ongoing mental illness, the staleness of offending more than two decades old, signs of rehabilitation, and totality and parity issues. His Honour explained that Bugmy principles do not automatically produce a lighter sentence but must be genuinely weighed, and that the sentencing judge's remarks risked giving those principles little or no weight.

McNaughton J agreed with both, observing that the difficulty of the matter arose from the intersection of multiple mitigating considerations, including the stale index offending, childhood sexual abuse in institutional settings, Bugmy factors, mental illness, and steps toward rehabilitation. On balance, all three judges concluded the aggregate sentence could not stand and the applicant was to be resentenced in accordance with Rothman J's proposed orders.

Orders Made

• Leave to appeal be granted
• Appeal be allowed
• Quash the sentence imposed on the applicant on 5 October 2022 and resentence the applicant
• The applicant be sentenced to an aggregate sentence of imprisonment of 8 years and 4 months, commencing 20 July 2019 and concluding 19 November 2027, with a non-parole period of 5 years and 5 months, concluding 19 December 2024
• The applicant would be first eligible for parole on 19 December 2024

Key Takeaways

  • The Court of Criminal Appeal confirmed that intervention on the ground of manifest excess requires the inference that the sentencing discretion has miscarried, not merely that the Court would have reached a different result.
  • Bugmy v The Queen principles require sentencing courts to give genuine weight to severe childhood disadvantage and its direct relationship to serious offending; remarks suggesting those principles do not necessarily favour a lighter sentence may indicate insufficient weight was given to them.
  • Staleness of offending, serious ongoing mental illness, and indications of rehabilitation are all relevant mitigating factors that must be meaningfully considered alongside objective seriousness when sentencing for historical offences.
  • Backdating a sentence to run concurrently with an existing sentence significantly affects its practical impact; the Court cautioned against comparing sentencing statistics in isolation without accounting for concurrent structure.
  • Where multiple complex mitigating considerations intersect, including Bugmy factors, mental illness, institutional childhood abuse, drug addiction in remission, and totality, a sentencing court must weigh each with genuine care to avoid a sentence that is, on balance, manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33A, 97(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21B, 25D(2)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King [1936] 55 CLR 499; [1936] HCA 40
- Kentwell v R (No 2) [2015] NSWCCA 96
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- R v Engert (1995) 84 A Crim R 67; NSWCCA, 20 November 1995
- R v Jackson [2022] NSWDC 450