DS v R; DM v R [2022] NSWCCA 156

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DS v R; DM v R [2022] NSWCCA 156 Hearing dates: 2 March 2022 Date of orders: 13 July 2022 Decision date: 13 July 2022 Before: Beech-Jones CJ at CL N Adams J Cavanagh J Decision: In relation to the application for leave to appeal by DS: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 14 years and 6 months commencing on 7 April 2017 and expiring on 6 October 2031; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 10 years' imprisonment expiring on 6 April 2027; (c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 April 2027; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 13 years and 6 months' imprisonment for the offence of murder; (ii) 3 years' imprisonment for the offence of take and drive motor vehicle without consent of owner while owner present in vehicle in circumstances of aggravation contrary to s 154C(2) of the Crimes Act 1900; (4) Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the appellant is to serve his sentence as a juvenile offender until he attains 21 years of age; and (5) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, the appellant is advised of the existence of that Act and of its application to the offences he has committed. In relation to the application for leave to appeal by DM: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 27 years commencing on 7 April 2017 and expiring on 6 April 2044; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 20 years and 7 months' imprisonment expiring on 6 November 2037; (c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 November 2037; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 20 years and 8 months' imprisonment for the offence of murder; (ii) 7 years and 2 months' imprisonment for the offence of robbery while wounding while armed with an offensive weapon; (iii) 7 years and 2 months' imprisonment for the offence of wounding with intent to cause grievous bodily harm; (iv) 4 years' imprisonment for the offence of take and drive motor vehicle without consent of owner while owner present in vehicle in circumstances of aggravation contrary to s 154C(2) of the Crimes Act 1900; and (4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, the appellant is advised of the existence of that Act and of its application to the offences he has committed. Catchwords: CRIMINAL LAW – sentence appeal – two juvenile offenders DM and DS – each convicted of murder and aggravated take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation – DM also convicted of robbery with wounding while armed with an offensive weapon – wounding with intent to cause grievous bodily harm – offences included on Form 1 – offences committed on the same night in Queanbeyan – murder involved robbery of service station and stabbing of attendant by one of the offenders – both offenders liable for constructive murder – DS culpable for foundational crime on the basis of extended joint criminal enterprise to commit robbery – each offender affected by dysfunctional background and mental health issues – moral culpability reduced – long sentences imposed – whether moral culpability of offender part of determination of objective seriousness of offence – rejected – sentencing judge erred in assessing objective seriousness of DS's offences – sentencing judge addressed DS's participation in DM's offences as opposed to DS's offences – sentencing judge erred in failing to give effect to finding of special circumstances – no error in consideration of DS's youth – objective seriousness of DM's offence of murder assessed as substantially above the mid–range – no error established – whether sentencing judge erred in consideration of DM's youth – no error established – whether sentencing judge erred in describing murder as involving "gratuitous violence", "cold blooded" – submission untenable – no error established – whether sentences imposed manifestly excessive – sentences well in excessive of the objective seriousness of each offence – parity – Bugmy considerations – leave to appeal granted – appeal allowed – applicants resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Evidence Act 1995 Cases Cited: AB v R [2014] NSWCCA 339 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Azzopardi v R [2019] NSWCCA 306 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Biddle v R [2017] NSWCCA 128 BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472; 98 ALR 180 Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Craft v R [2021] NSWCCA 131 Christian v R [2021] NSWCCA 300 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fisher v R; R v Fisher [2021] NSWCCA 91 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 House v R (1936) 55 CLR 499; [1936] HCA 40 JM v The Queen [2012] NSWCCA 83; (2012) 223 A Crim R 55 Johnston v R [2021] NSWCCA 86 Kelley v R [2021] NSWCCA 173 Khan v R [2022] NSWCCA 47 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McLaren v R [2012] NSWCCA 284 MDZ v R [2011] NSWCCA 243 Milat v R [2014] NSWCCA 29 Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 Moiler v R [2021] NSWCCA 73 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363 Park v R [2019] NSWCCA 105 Paterson v R [2021] NSWCCA 273 R v AA [2017] NSWCCA 84 R v DS; R v DM [2020] NSWSC 422 R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 R v Khalid [2017] NSWSC 1365 R v Robinson [2002] NSWCCA 359 R v SSA [2007] NSWSC 1202 R v Whitfield [2001] NSWSC 876 R v Whitfield [2002] NSWCCA 501 Sypher v R [2020] NSWCCA 336 Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Western Australia v Munda (2012) 43 WAR 137; [2012] WASCA 164 Zreika v R [2021] NSWCCA 243 Category: Principal judgment Parties: DS (Applicant) DM (Applicant) Regina (Respondent) Representation: Counsel: Mr S Odgers SC; Mr E Kerkyasharian (DS) Ms G Bashir SC; Ms G E Lewer; Ms C Akthar (DM) Mr G Newton; Mr M Gleeson (Crown)