Citation: R v Dickson [2002] NSWCCA 327; (2002) 132 A Crim R 137
Court: New South Wales Court of Criminal Appeal
Date: 5 August 2002
Judge(s): Meagher JA, Simpson J, Howie J
Background
The respondent, an inmate at a low-security unit in Grafton Correctional Centre, escaped custody in October 2000 together with three co-offenders. Shortly after breaking out, the group approached a car near Grafton Base Hospital occupied by a man and his mother. The respondent forced his way into the vehicle and a violent robbery followed, during which both occupants were seriously beaten, including being struck with an object and stomped on the head.
The respondent was arrested the following day after being surrendered to police near Glen Innes. He admitted driving the stolen vehicle and stealing items from it, but denied assaulting either victim. Both victims suffered significant injuries, including a fractured cheekbone, sensory neural deafness (the male victim), and head lacerations and ongoing dizziness (the female victim).
At first instance, Judge Goldring in the Campbelltown District Court sentenced the respondent to three years imprisonment, with an eighteen-month non-parole period, on the two aggravated robbery counts, and imposed a concurrent eighteen-month term for the escape count. The Crown appealed on the ground that the sentences were manifestly inadequate and disclosed legal error.
Legal Issues
- Whether the sentencing judge imposed sentences that were manifestly inadequate given the objective gravity of the offences and the respondent's circumstances.
- Whether the sentencing judge failed to comply with section 57 of the Crimes (Sentencing Procedure) Act 1999, which governs the accumulation of sentences where an offender commits offences while already subject to a sentence (such as escape from lawful custody).
- How section 57(2) of that Act should be construed, specifically whether a sentence for escape may be ordered to commence at a date earlier than sentences for the offences committed after the escape.
Decision
The Court of Criminal Appeal allowed the appeal, with the respondent's own counsel conceding that errors had been made below and that resentencing was necessary. Meagher JA identified at least two manifest errors: the sentences were inadequate given the objective seriousness of the offending, and the sentencing judge failed to apply the principles governing accumulation of sentences where offences are committed while an offender is subject to custody.
A central question was the proper construction of section 57 of the Crimes (Sentencing Procedure) Act 1999, which requires a court to consider the order in which sentences commence when offences are committed during an existing period of lawful custody. The Court, consistent with the approach in Pearce v The King, confirmed that the escape sentence and the sentences for subsequent offences needed to be ordered appropriately rather than run concurrently as the trial judge had directed.
Simpson J agreed with the proposed orders but offered a specific observation on section 57(2). Her Honour accepted that the provision permits an escape sentence to commence at an earlier date than sentences for offences committed after the escape, but declined to endorse any reading that would go further than that.
Howie J agreed with the outcome and observed that the sentence imposed on appeal represented the minimum that could properly be imposed, having regard to the Crown appeal principle (under which a court of appeal generally confines itself to the minimum sentence that corrects the error) and affidavit material filed in the proceedings.
Orders Made
- Appeal allowed.
- Original sentence quashed.
- For the escape offence: twelve months imprisonment from 18 October 2001, fixed term expiring 17 October 2002.
- For the more serious aggravated robbery charge: five years imprisonment commencing 18 October 2002, with a non-parole period of four years and nine months expiring 17 July 2007.
- For the remaining assault charge: four years imprisonment commencing 18 October 2005, with a non-parole period expiring 17 July 2007 (the Form 1 offence was taken into account in fixing this sentence).
- Aggregate sentence: eight years imprisonment with a non-parole period of five years and nine months.
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court must comply with section 57 of the Crimes (Sentencing Procedure) Act 1999 when an offender commits further offences while already serving a custodial sentence, and that failing to do so constitutes legal error.
- Imposing concurrent sentences for escape and offences committed after that escape, without proper application of accumulation principles, was identified as a ground for allowing a Crown appeal.
- Under section 57(2), a sentence for escape may commence at an earlier date than the sentences imposed for offences committed following the escape, though the Court stopped short of endorsing a broader reading of that provision.
- Where a Crown appeal succeeds, the appellate court generally limits the resentenced term to the minimum necessary to correct the error rather than imposing what the sentencing court ought originally to have imposed. Howie J explicitly noted that the sentence substituted was not the sentence that should have been imposed at first instance.
- Concurrent sentences for distinct and serious offences arising from a sequence of criminal conduct were found to be manifestly inadequate where the objective gravity of each offence warranted separate and cumulative recognition.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 57
- Criminal Appeal Act 1912 (NSW), section 5D
- Justices Act (NSW), section 51A
- Crimes Act (NSW)
Cases:
- Pearce v The King (1998) 194 CLR 610