New South Wales Court of Criminal Appeal CITATION : R v Dunn [2003] NSWCCA 169 HEARING DATE(S) : 24/06/03 JUDGMENT DATE : 13 August 2003 JUDGMENT OF : Meagher ACJ at 1; Dowd J at 24; Barr J at 25 DECISION : 1. In respect of the May 2000 offences, the sentence imposed by the learned trial judge should be set aside and replaced by an order of imprisonment for a term of 5 years, commencing on 21 July 2001 and expiring on 20 July 2006; 2. The learned trial judge's sentences on the September 2001 firearms charges should be set aside and there should be substituted the following:- (a) On the s 51(1A) offence, 7 years imprisonment commencing on 21 July 2004 and expiring on 20 July 2011, with a non-parole period of 3 years 9 months commencing on 21 July 2004 and expiring on 20 April 2008, on which date he will be eligible for release on parole; (b) On the s 51(1) offence, 2 years 3 months imprisonment commencing on 21 July 2004 and expiring on 20 October 2006. There will be non non-parole period because of the previous sentence. CATCHWORDS : CRIMINAL LAW - Crown Appeals - Inadequate sentences - Mitigation of sentence - Principles applicable when offender of average intelligence. Crimes Act 1900 LEGISLATION CITED : Firearms Act 1996 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 R v Scognamiglio (1991) 56 A Crim R 81 CASES CITED : R v Letteri (NSWCCA 18/03/92, unreported) R v Murchie [1999] NSWCCA 424 Regina PARTIES : v Jack James Dunn FILE NUMBER(S) : CCA 60480 of 2002 COUNSEL : Crown: GIO Rowling Respondent: C Craigie SC SOLICITORS : Crown: SE O'Connor Respondent: Horowitz & Bilinsky LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0053; 02/21/1201 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60480 of 2002 MEAGHER JA DOWD J BARR J Wednesday, 13 August 2003 REGINA v DUNN FACTS The respondent to this appeal was tried in the District Court on four charges: (a) two charges under ss 97(1), 117 and 154A of the Crimes Act 1900, arising out of offences committed on 17 May 2000; (b) two charges under ss 5(1) and 51(1A) of the Firearms Act 1996, arising out of events which took place between 17 and 23 September 2001. He was sentenced on 27 September 2002. In respect of the May 2000 offences there was imposed a head sentence of 3 years 9 months; in respect of the September 2001 offences, a head sentence of 6 years. The Crown appealed against these sentences pursuant to s 53 of the Criminal Appeal Act 1912. HELD per Meagher JA (Dowd and Barr JJ agreeing): i. The sentences imposed by the trial judge were inadequate, despite the fact that his Honour made no error of fact or law. ii. The result is so offensive to one's sense of appropriateness, so little calculated to deter the proliferation of such crimes, and so inexplicable, that the sentences should be set aside. HELD per Barr J: The principles enunciated in R v Scognamiglio (1991) 56 A Crim R 81 and R v Letteri (NSWCCA 18 March 1992, unreported), relevant to the sentencing of persons suffering from mental illness or severe intellectual deficit, are not applicable to impulsive and reckless people of average intelligence. As a general rule, Attention Deficit Hyperactivity Disorder is not a condition which attracts the operation of those principles. ORDERS i. In respect of the May 2000 offences, the sentence imposed by the learned trial judge should be set aside, and replaced by an order of imprisonment for a term of 5 years, commencing on 21 July 2001 and expiring on 20 July 2006; ii. The learned trial judge's sentences on the September 2001 firearms charges should be set aside and there should be substituted the following:– (a) On the s 51(1A) offence, 7 years imprisonment commencing on 21 July 2004 and expiring on 20 July 2011, with a non-parole period of 3 years 9 months commencing on 21 July 2004 and expiring on 20 April 2008, on which date he will be eligible for release on parole. (b) On the s 51(1) offence, 2 years 3 months imprisonment commencing on 21 July 2004 and expiring on 20 October 2006. There will be no non-parole period because of the previous sentence. IN THE COURT OF CRIMINAL APPEAL CCA 60480 of 2002 MEAGHER JA DOWD J BARR J Wednesday, 13 August 2003 REGINA v DUNN Judgment 1 MEAGHER JA: This is a Crown appeal pursuant to the provisions of s 5D of the Criminal Appeal Act 1912 against the sentences imposed on Mr Dunn by his Honour Judge Nicholson SC at Parramatta District Court on 27 September 2002, on the grounds that the sentences are manifestly inadequate. 2 The sentences relate to (1) two charges arising out of events of 17 May 2000, under ss 97(1), 117 and 154A of the Crimes Act 1900, and (2) two charges arising out of events which took place between 17 and 23 September 2001 under ss 51(1) and 51(1A) of the Firearms Act 1996. 3 Dispensing with unnecessary detail, the sentences imposed by his Honour were as follows: 1. In respect of the May 2000 offences, his Honour imposed a sentence for a term of 3 years 9 months commencing on 21 July 2001 and expiring on 20 April 2005, with a non-parole period of 2 years commencing on 21 July 2001 and expiring on 20 July 2003; 2. In respect of the two September 2001 offences, a sentence was imposed for the s 51(1A) offence of a term of imprisonment for six years commencing on 21 July 2003 and expiring on 20 July 2009, with a non-parole period of three years commencing on 21 July 2003 and expiring on 20 July 2006, and for the s 51(1) offence for a term of 2 years and 3 months commencing on 21 July 2003 and expiring on 20 October 2005. 4 The facts surrounding the May 2000 offences were that between about 1.30pm and 4.00pm on 17 May 2000 the motorcar (a Nissan 200sx sedan) of one Misha Charett, worth about $25,000, was stolen by Mr Dunn from where it was parked at Royal North Shore Hospital. When recovered its front and back panels, and its steering column, were damaged. It was used by Mr Dunn and a group of his friends for the purposes of a bank robbery. They reversed the car into the doors of the Kings Park Branch of the National Australia Bank, which at the time was closed and in which tellers were balancing cash totals for the day. Mr Dunn, dressed in a white sloppy joe pulled up so as to conceal his face and armed with a tyre lever, and accompanied by his friends wearing balaclavas and (mostly) latex gloves, burst into the Bank room. One of them yelled out "Get down to the ground"; the tellers hid under their desks; one of the men demanded that the Bank safe be opened, and tried to open it; altogether the men took nearly $40,000 in cash from one of the tellers' drawers and shoved it into a backpack. The damage done to the Bank was about $3,000. 5 One of the latex gloves used by the gang was found, and it bore Mr Dunn's fingerprints. 6 He was twenty years old at the time, and had spent many of those years in criminal activities. 7 He had taken part in planning what was clearly a carefully planned operation. He had supplied gloves and a tyre lever. 8 Although he might have expressed contrition in a perfunctory way to a social worker, he never did anything about it as far as his victims were concerned. 9 His share of the proceeds was $3,500. He did not need that, or any, money. Poverty was not one of his problems. He used it, in an eighteenth century manner, on clothes and "clubbing". 10 He was an Aborigine, but that seems to have nothing to do with the crime. 11 His childhood was not particularly unhappy. 12 At the time he was subject, at least nominally, to the supervision of the Probation and Parole Service, following his release to a supervised Juvenile Probation Order after a previous break, enter and steal. He was, therefore, at conditional liberty. 13 One of the social workers discovered that he was afflicted with the currently fashionable Attention Deficit Hyperactivity Disorder, although its existence had been successfully concealed from everyone else who had had anything to do with him. His Honour found that this malady had nothing to do with the commission of either the May 2000 offences or the September 2001 offences. It is, therefore, in my opinion, irrelevant in this appeal. 14 He had the beginnings of an alcohol problem, and was not entirely unacquainted with drugs, but these factors were likewise immaterial. 15 In due course, he pleaded guilty. 16 The brute facts, therefore, are that Mr Dunn deliberately planned and committed an appalling robbery, with no subjective factors exonerating him or diminishing his culpability; he did it in company, and he did it whilst armed; the offence itself was one of violence. Its effect on the unfortunate bank tellers can only be imagined. The amount of money stolen was not exiguous. To impose a non-parole period of two years, and a head sentence of less than four years, is, in my opinion, ridiculous. 17 His Honour did not make any mistake of fact or law. Despite this fact, and despite the reluctance which we must exhibit in disturbing a trial judge's findings; despite considerations of double jeopardy; and despite the supposed principle that Crown appeals should be instituted but rarely, the result is so offensive to one's sense of appropriateness, so little calculated to deter the proliferation of such crimes, and so inexplicable, that in my view it should be set aside and replaced by an order of imprisonment for a term of five years, commencing on 21 July 2001 and expiring on 20 July 2006. In this respect we should take into account under s 33 of the Crimes (Sentencing Procedure) Act 1999 Mr Dunn's theft of the motor vehicle. 18 Matters do not improve when one comes to the events of September 2001. In that month Mr Dunn, then on bail, participated in a transaction of sale of firearms. The vendor seems to have been a Mr Sheehan, who operated through an agent, a disgraced prison officer called Archer. The purchaser was apparently a Mr El Saadi, who operated either on his own behalf or through an agent called Mohamed. Mr Dunn was the broker in the transaction, apparently assisted by one of his brothers-in-law called Robson. Most of these figures are shadowy, and seem to have faded into the mists. 19 The circumstances surrounding the transaction are obscure. One does not know how, where or why the firearms were sold, but one might be forgiven for speculating that the purposes were hardly likely to be benign or the participants to be savoury. 20 Mr Dunn, needless to say, had no license or permit to deal in any of the guns; and many of the guns were prohibited weapons. Some had their serial numbers obliterated. Forty weapons in all were detected; one cannot but wonder what sales went undetected. The total sale price seems to have been about $40,000. The weapons included two Baikal guns, one of them a 12 gauge double barrelled shotgun, four Lithgow repeating rifles, one Mauser repeating rifle, one New England firearm rifle, one BSA rifle and one Zado Crvena Zastava rifle. 21 The number and quality of the firearms are truly alarming. The remarks which I have already made about the inadequacy of his Honour's treatment of the May 2000 offences, apply (perhaps with added force) to the September 2001 offences. 22 In my view his Honour's sentences on the firearms charges should be set aside and there should be substituted the following:– (a) On the s 51(1A) offence, 7 years imprisonment commencing on 21 July 2004 and expiring on 20 July 2011, with a non-parole period of 3 years 9 months commencing on 21 July 2004 and expiring on 20 April 2008, on which date he will be eligible for release on parole. (b) On the s 51(1) offence, 2 years 3 months imprisonment commencing on 21 July 2004 and expiring on 20 October 2006. There will be no non-parole period because of the previous sentence. 23 The intention of the Court is to substitute an overall head sentence of 10 years and an overall non-parole period of 6 years 9 months. The circumstances justifying a non-parole period, which is less than three-quarters of the term of its sentence are the accumulation of sentences and the need of the respondent for an extended period of parole. 24 DOWD J: I agree with Meagher JA and Barr J. 25 BARR J: I agree generally for the reasons given by Meagher JA that the Crown appeal should be allowed and that the respondent should be resentenced in the manner proposed by his Honour. 26 The sentencing judge found that the respondent's condition, called Attention Deficit Hyperactivity Disorder, had no connection with his offences but took it into account in sentencing under a principle by which offenders suffering from mental illness or having severe intellectual deficit are not suitable persons to be made media for example to others. R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (Court of Criminal Appeal, New South Wales, 18 March 1992, unreported). So his Honour reasoned that general deterrence was to be given less weight in sentencing the respondent. 27 There was before his Honour a report of a psychologist, Anna Robilliard, which showed that the respondent had been shown at school to be dyslexic and that he suffered from the condition described as Attention Deficit Disorder with Hyperactivity. The principal features of that condition were that he was impulsive and restless. He was of about average intelligence. 28 It does not seem to me that impulsive and reckless people who are of about average intelligence fall into the category of persons contemplated by the principle I have mentioned. In making an allowance his Honour relied on the authority of R v Murchie [1999] NSWCCA 424, a decision of the Court of Criminal Appeal constituted by two judges. Judgments of benches so constituted do not promulgate new matters of principle. I would not regard R v Murchie as authority that as a general rule Attention Deficit Hyperactivity Disorder is a condition which attracts the principle contended for. I do not think that the respondent was entitled to any mitigation of sentence because of his condition. ***** Last Modified: 01/07/2009 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.