DB v Regina; DNN v Regina - [2007] NSWCCA 391

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DB v Regina; DNN v Regina [2006] NSWCCA 391

FILE NUMBER(S):
2006/247
2006/342

HEARING DATE(S): 28 June 2006

DECISION DATE: 07/02/2007

PARTIES:
Applicant - DB
Applicant - DNN
Respondent - Regina

JUDGMENT OF: McClellan CJ at CL Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/10285
04/11/0657

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

COUNSEL:
Applicant DB - GD Wendler
Applicant DNN- J Hickleton
Crown Respondent - P Ingram

SOLICITORS:
Applicant DB - Van Houten Solicitors
Applicant DNN - George Sten & Co
Crown Respondent - S Kavanagh

CATCHWORDS:
Sentence; aggravated armed robberies; failure to have regard to principles applicable to juvenile offenders; sentence not according with agreed statements of facts; parity.

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Act 1914 (Cwth)

DECISION:
APPLICANT DB - Leave to appeal granted; appeal allowed; sentences imposed below quashed
Count one : non parole period of 3 years to date from 5 April 2004, expiring 4 April 2007, with a balance of term of 3 years to date from 5 April 2007, expiring 4 April 2010
Count two : non parole period of 4 years to date from 5 April 2006, expiring 4 April 2010, with a balance of term of 4 years to date from 5 April 2010, expiring 4 April 2014 The offences on the Form One are taken into account in determining the sentence on this Count
Count three : non parole period of 2 years to date from 5 April 2008, expiring 4 April 2010, with a balance of term of 3 years to date from 5 April 2010, expiring 4 April 2013
The applicant is eligible for release to parole on 5 April 2010
APPLICANT DNN - Leave to appeal granted; appeal allowed; sentences imposed below quashed
Count one : taking into account the offences on the Form One, a non parole period of 6 years is imposed to date from 31 October 2003, expiring 30 October 2009, with a balance of term of 4 years, expiring 30 October 2013.
Count two : a non parole period of 3 years is imposed to date from 31 October 2005, expiring 30 October 2008, with a balance of term of 3 years, expiring 30 October 2011
Count three : a non parole period of 3 years is imposed to date from 31 October 2007, expiring 30 October 2010 with a balance of term of 2 years, expiring 30 October 2012
Count four : a non parole period of 3 years is imposed to date from 31 October 2008, expiring 30 October 2011, with a balance of term of 4 years expiring 30 October 2015
The applicant is eligible for release to parole on 31 October 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/247
2006/342
McCLELLAN CJ at CL
ADAMS J
LATHAM J
7 FEBRUARY 2007

DB v REGINA
D N N v REGINA

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCCA 391
Decision Date: 07/02/2007

CaseChat Overview and Summary

The case of DB v Regina; DNN v Regina involved two defendants, DB and DNN, who were jointly charged with aggravated armed robberies. The primary dispute centered on the sentencing approach taken by the trial judge, particularly the application of principles relevant to juvenile offenders, the consideration of agreed statements of facts, and the issue of parity in sentencing. The defendants appealed the sentences imposed on them by the trial judge, arguing that the sentences did not accord with the agreed statements of facts and failed to consider the relevant principles applicable to juvenile offenders.

The legal issues before the court included whether the trial judge erred in not considering the principles applicable to juvenile offenders, particularly for DNN who was a juvenile at the time of the offences. The court also needed to determine if the trial judge's sentences accorded with the agreed statements of facts, and whether there was a parity issue in sentencing between DB, DNN, and Dung Dinh. Additionally, the court had to examine whether the trial judge's approach to sentencing, including the starting points and discounts for pleas of guilty, was appropriate.

The court found that the trial judge did not have regard to the principles applicable to juvenile offenders when sentencing DNN. It was noted that the judge had initially considered applying a higher starting point for DNN, but later decided to impose a sentence on par with Dung Dinh, which was not in line with the principles for juvenile offenders. The court further determined that the sentences did not accord with the agreed statements of facts. The trial judge had based the sentences on the notion that DB, DNN, and Dung Dinh were equally culpable for the joint charges, despite DNN not being charged with certain offences. The court also found that the trial judge did not adequately address the issue of parity in sentencing, leading to a disparity in the sentences imposed on the defendants. Consequently, the sentences were quashed and the matter was remitted for re-sentencing.

The court ordered that the sentences imposed on DB and DNN be quashed and that the matter be remitted to the trial court for re-sentencing. The re-sentencing was to be conducted in accordance with the principles applicable to juvenile offenders, the agreed statements of facts, and ensuring parity in sentencing where appropriate. The court emphasized the importance of a fair and consistent approach to sentencing, particularly when dealing with co-offenders who have different roles and culpability in the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

Ultimately His Honour was persuaded that the Crown's approach was justified :-All I can do is take the view, I think, that the Crown has presented to me the case which to the fullest extent to which it can prove, and therefore I must sentence on that basis. ….. Now what it means is, as it seems to me when we come to page 4, [DN] is not charged with a couple of matters that [DB] is charged with, but his role is clearly described. I can describe, it seems to me, what [DN] did in [DB’s] case, but I cannot deal with [DN] as if he did those things because he has not been charged with them. ….. It accords with common sense that I say it’s [DN] because he is the only other man it could be, but he is not charged with those matters so he can't be convicted of those matters. …. If people are dealt with for different crimes on different facts, sometimes parity’s got very little to do with it.………………………………………………………………..And indeed you see the submissions of the Crown have settled a problem that I had and it is this, that Dung Dinh Nguyen was charged with a very large number of offences, many more than these people were. And I couldn't follow why that was, why he was charged with these and these other people weren't, and he said that your client was the ringleader. If he was, where are all these other offences, why is he not there with all these other offences too if he’s the ringleader? So the having as the ringleader for half of it wouldn't seem to make any sense, and the Crown's submissions I think have cleared up my mind on that. So I will sentence them on the basis that they are both in reality equally culpable in respect of those matters to which they’re jointly charged. But they're not jointly charged totally with the same offences. For those in which they’re separately charged, well they’re separately liable. (T/S pp 11-14) The foregoing demonstrates that, despite earlier misgivings, his Honour intended to approach the assessment of the applicant’s criminality without regard to the material placed before the court on the sentencing of Dung Dinh. It appears that his Honour accepted that parity was not a live issue. However, an examination of the remarks on sentence in relation to both the applicant and DN, in the light of his Honour’s adoption of a nominal starting point of 20 years imprisonment in the case of DN and Dung Dinh, establishes the validity of the applicant’s complaint in this Court. When sentencing DN, his Honour found that he could draw “no real distinction between [him] and Dung Dinh Nguyen when [considering] criminality.” His Honour went on to say, “having regard to the disclosed role of [DN], his activities also would require as a starting point a twenty year sentence.” His Honour then applied a 20% discount for the pleas of guilty to that starting point, arriving at an aggregate sentence of 16 years. The error in that approach is explored further below. In the applicant’s case, his Honour determined that he should receive a lesser sentence than DN and Dung Dinh, applied a 20% discount for the pleas of guilty and arrived at an aggregate sentence of 12 years, indicating a starting point of 15 years. That approach is disclosed by these words, namely, “there will be an overall sentence of 12 years with a non parole period of 8 years. That makes some allowance for special circumstances and takes into account a discount of 20 percent from what the starting point should have been had there been no plea of guilty.” (ROS 11)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ ADAMS J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ,

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