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32
Court of Criminal Appeal 20 October 2003

R v Durocher-Yvon [2003] NSWCCA 299 revised - 21

[2003] NSWCCA 299

Also reported as (2003) 58 NSWLR 581
Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE APPEAL AND NEW TRIAL WHETHER THE EVIDENCE SHOULD BE RECEIVED

Citation: R v Durocher-Yvon [2003] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 20 October 2003
Judge(s): Sheller JA, Sully J, Howie J (Howie J delivering the principal judgment)

Background

The applicant was sentenced in the District Court in February 2002 after pleading guilty to 21 dishonesty offences, with a further 180 offences taken into account on a Form 1. The offences involved fraudulent conduct over roughly two and a half years, yielding over $97,000 spent on living expenses, cocaine, gambling, and luxury items. The sentencing judge described the applicant as an "obvious conman" and possibly a pathological liar, with an extensive prior record for dishonesty matters.

Judge Nield imposed a total sentence of 7 years 4 months and 2 weeks, with a non-parole period of 4 years 7 months and 2 weeks. Separately, the applicant was later sentenced for a sexual intercourse without consent offence and further Local Court matters, extending his effective earliest parole date to April 2008.

On the very day of sentencing, the applicant applied to the Department of Corrective Services to be placed in protective custody, citing fear for his safety. He had remained on protection ever since. His sole ground of appeal was that the Court of Criminal Appeal should receive that fact as fresh evidence and reduce his sentence accordingly.

  • Whether the Court of Criminal Appeal should receive, as fresh evidence on appeal, the fact that the applicant had been placed in protective custody from the date of sentencing.
  • Whether an offender's placement in protective custody is a relevant mitigating factor at sentencing.
  • Whether, and to what extent, a reduction in sentence is automatically warranted where an offender serves time on protection.

Decision

Howie J (with whom Sheller JA and Sully J agreed) acknowledged that an offender's need to serve a sentence in protective custody is, in principle, a relevant sentencing consideration. Protection typically imposes more onerous conditions of confinement and restricts access to programmes and activities available to the general prison population. Prior decisions of the Court of Criminal Appeal had recognised this as a mitigating factor in appropriate cases.

However, the Court declined to receive the evidence or reduce the sentence on the facts of this case. Several features undermined the applicant's position: the protection was sought by the applicant himself, apparently on the day of sentencing; the reasons for seeking protection were unexplained and may have been connected to gambling debts arising from conduct forming part of his offending; and there was no clear indication that protection would be required for the entirety of the sentence. The Court also noted that Judge Hock had already taken the custodial situation into account when imposing the later sexual assault sentence.

Howie J drew an important distinction between different categories of offenders. In cases involving prison informers or those who have assisted authorities, courts can confidently assume that severe and prolonged hardship from strict protection is likely, justifying a reduction. For child sex offenders, the sentencing range already incorporates a degree of leniency on this basis. But where an offender has sought protection themselves, closer scrutiny of the actual circumstances is required before any discount is justified.

The Court concluded that no miscarriage of justice had occurred and that the evidence available did not require any adjustment to the sentence imposed by Judge Nield.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the prospect of serving a sentence in protective custody is a relevant mitigating consideration in sentencing, but it does not automatically entitle an offender to a reduction in sentence.
  • A distinction exists between offenders who are placed on protection due to cooperation with authorities (where hardship can be confidently assumed) and offenders who seek protection for their own reasons, where closer scrutiny is warranted before any discount is applied.
  • Where an offender voluntarily seeks protective custody, and the reasons for doing so are connected to or consistent with their own offending conduct, a sentencing court may properly decline to reduce the sentence on that basis.
  • Fresh evidence of post-sentence protective custody will only be received on appeal where its absence from the original proceedings resulted in a miscarriage of justice. No such miscarriage arose on these facts.
  • In dismissing the appeal, the Court noted that child sex offender sentencing ranges already incorporate some leniency to account for the likelihood of protective custody, distinguishing that category from cases such as this one.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Fordham (1997) 98 A Crim R 359
- R v Patison [2003] NSWCCA 171
- R v Ingram [2002] NSWCCA 398
- R v MacDonnell [2002] NSWCCA 34
- R v Wahabzadah [2001] NSWCCA 253
- R v S [2000] NSWCCA 13
- R v GP [2001] NSWCCA 231
- R v Totten [2003] NSWCCA 207