R v Duffy

[1999] NSWCCA 321

CITATION:	Regina v Julie Anne DUFFY [1999] NSWCCA 321
FILE NUMBER(S):	CCA 60268/99
HEARING DATE(S):	13 October 1999
JUDGMENT DATE:	13 October 1999
PARTIES :	Regina Julie Anne Duffy
JUDGMENT OF:	Sully J at 1; Ireland J at 14; Hidden J at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0903
LOWER COURT JUDICIAL OFFICER:	English DCJ

COUNSEL:	R. D. Ellis - Crown In person - Respondent
SOLICITORS:	S. E. O'Connor - Crown T. A. Murphy - Respondent
CATCHWORDS:
ACTS CITED:	Crimes Act Criminal Appeal Act
DECISION:	Crown appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60268/99

SULLY J
IRELAND J
HIDDEN J

13 October 1999

REGINA v Julie Ann DUFFY

JUDGMENT

1 SULLY J: On 30 April 1999 Miss Julie Anne Duffy stood for sentence before her Honour English DCJ at the District Court in Sydney. She was presented before her Honour charged with robbery in company in contravention of s 97(1) of the Crimes Act, an offence carrying, upon conviction, a maximum statutory penalty of penal servitude for twenty years. Miss Duffy pleaded not guilty, but she was found guilty, and was sentenced thereupon to penal servitude for a minimum term of twelve months and an additional term of a further twelve months. The minimum term was dated so as to expire on 21 July of this year. Having so expired, Miss Duffy was released to parole in accordance with the order in that behalf of the sentencing Judge. So far as is indicated by the material at present before this Court, she has remained at liberty on that parole without having committed further offences. 2 The Crown has brought, pursuant to the relevant provisions of the Criminal Appeal Act, an appeal against the sentence thus imposed in the District Court. The Crown contends that the sentence is manifestly inadequate, and that this Court should intervene, notwithstanding that any intervention by this Court will undoubtedly mean, in the events that have happened, the recommitting of the respondent, Miss Duffy, to prison. 3 The material facts are within a small compass. Put simply, they entail that the respondent and co-offender set upon a young woman who was standing upon a kerb in a suburb minding her own business, and robbed her of some property. During the course of that occurrence the co-offender, who was armed with a knife, inflicted upon the victim some cuts which, although they do not seem to have been particularly serious, must undoubtedly have caused the greatest distress and anxiety, discomfort and fear, to the victim concerned. 4 It needs to be said at once, and plainly, that the offence as thus described was not by any stretch of the imagination a simple, trivial, or in any other sense inconsequential street offence. Robbery in company is a serious criminal offence, as the statutory maximum provided for its punishment ought to make clear to anybody and everybody. 5 The proposition that a sentence of the kind imposed by the learned sentencing Judge adequately balances those objective facts and the subjective material which was available for her Honour’s consideration cannot, in my view, be sustained. 6 The first thing that the Crown has to demonstrate if it is to succeed on its appeal, is that the sentence imposed is manifestly inadequate. For myself, I would have thought that one has only to look at the sentence in the setting of the relevant facts and circumstances for it to be crystal clear that the sentence was egregiously inadequate. Nothing that falls from this Court, at least from what I wish to say, is to be understood by anybody as diminishing in any way the gravity of the offence with which the Court has to deal on the facts of this appeal. 7 The co-offender was dealt with separately by his Honour Judge Stewart. She was sentenced to penal servitude for five and a half years apportioned between a minimum term of two and a half years and an additional term of three years. She was dealt with for a number of discrete matters of which the offence committed by her jointly with Miss Duffy was but one. As I see it, there was not a great deal to choose between the criminal antecedents of Miss Duffy and those of her co-offender. Both were appalling. I think that in a strict sense the cases of Miss Duffy and her co-offender are not cases which involve a parity argument; but as it was put, and in my view put correctly, during the course of the submissions, the Court cannot approach the two cases upon the basis of simple and absolute disparity either. 8 That is one matter that I, at least, see as going in a very significant and practical way to the exercise of the relevant over-arching discretions of this Court to intervene, even in the case where it has been demonstrated that the sentence appealed from is egregiously inadequate. 9 There are other considerations, it seems to me, that bear upon those relevant discretions. Not the least significant of them is that Miss Duffy has been, as I earlier said, at liberty for some three months without having offended further against the law. That is not a trifling matter, and she is entitled to have that taken appropriately into account for present purposes. To recommit her to prison now would be a very harsh thing to do. That is no reason not to do it if circumstances otherwise justify that course; but it is, I repeat, a very harsh thing to do, and the Court would always need a very compelling case to be made out before doing such a thing. 10 During the course of exchanges with learned counsel for the Crown - for whose assistance in the absence of representation available to Miss Duffy the Court is most grateful - various hypotheses have been explored as to sentences which this Court might consider to be appropriate in lieu of the sentence imposed in the Court below. I do not propose to canvass the precise figures because as soon as I do so anything I say will go into somebody’s computer and will be used as a precedent in other and less meritorious cases. I will content myself by saying that as I see the relevant margin within which this Court is able to move on the facts of the present case, cause has not been shown for the exercise in the Crown’s favour of the discretions, which, as I say, over-arch the other practical considerations that the Court must take into account. 11 I wish to add the following observations: the remarks on sentence, as I said during submissions, are unhelpful in their brevity. It is not expected that a sentencing Judge, and particularly a sentencing Judge in the District Court, will write an essay in jurisprudence every time he or she comes to deliver remarks on sentence. But it is, I think, timely to say that the Court expects that primary sentencing Judges will at least state, however briefly, the findings of fact upon which they are persuaded to proceed; and will then expose in relation to those facts as found a coherent process of reasoning which will sufficiently equip this Court to intervene if asked to do so, and if a cause for doing so is otherwise shown. 12 Secondly, the present case raises yet again the dilemma of what is to be done about primary sentencing Judges who for whatever reason will not impose sentences in a way that fairly and sensibly reflects what the law expects of them. It does no service to an offender to impose a sentence which is so egregiously inadequate as virtually to provoke a Crown appeal, with the possible consequence, - as might easily enough have resulted in this very case, - in particular cases of the recommitting to prison of somebody who has served the hypothetically inadequate minimum term imposed in the Court below. Sentencing Judges should understand clearly that if what has happened in this case happens often enough in future cases then, with whatever distaste, the Court will intervene, even though its intervention might entail the recommitting to prison of somebody who has served the particular inadequate minimum term. 13 For the whole of those reasons I do not think cause has been shown to uphold the Crown appeal. I would dismiss it accordingly. 14 IRELAND J: Yes, I agree. 15 HIDDEN J: Yes, I agree. 16 SULLY J: The order of the Court will be that the Crown appeal against sentence is dismissed.

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