R v DBN [2005] NSWCCA 435

New South Wales Court of Criminal Appeal

CITATION: R v DBN [2005] NSWCCA 435

HEARING DATE(S): 28 September 2005

JUDGMENT DATE: 14 December 2005

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 8; Rothman J at 9

DECISION: (a) Leave to appeal against sentence be granted;; (b) Appeal against sentence be dismissed.

CATCHWORDS: Criminal Law - appeal against sentence - use of aggravating factors under s.21A Crimes (Sentencing Procedure) Act - Special circumstances - different sentence is not warranted

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act

R v Hathaway [2005] NSWCCA 368 Veen v The Queen (No 2) (1988) 165 CLR 465 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Johnson [2004] NSWCCA 765 R v Swan [2005] NSWCCA 252 R v LWP [2003] NSWCCA 215

DBN PARTIES: The Queen

FILE NUMBER(S): CCA 2005/1610

Mr G Gowling COUNSEL: Mr H Dhanji

S O'Connor - Legal Aid Commission for Appellant SOLICITORS: S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1215 and 4/21/3010

LOWER COURT JUDICIAL OFFICER: Andrews ADCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1610

McCLELLAN CJ at CL HISLOP J ROTHMAN J

14 December 2005 REGINA v DBN Judgment 1 McCLELLAN CJ at CL: I generally agree with the reasons of Rothman J which I have had the advantage of reading in draft. 2 His Honour refers to the difficulties which s.21A has provoked on a number of occasions when sentences are being imposed. Although the section has proved useful in many cases it is important that the sentencing judge carefully identify the elements of the offence so that they are not also considered as an aggravating factor contrary to s 21A(2). 3 With respect to the relevance of prior convictions I identified in R v Hathaway [2005] NSWCCA 368 that the recent and consistent approach of this Court was that they could be relevant only to subjective matters. However, the matter may not be without controversy and may require further consideration in an appropriate case (see [2] and [30]-[34] in Hathaway). It may be necessary to consider the correct understanding of the joint judgment in Veen v The Queen (No 2) (1988) 165 CLR 465 at 477. 4 In the present matter Andrew ADCJ twice refers to the fact that the applicant "had previous convictions". Although not entirely clear it is tolerably plain that his Honour had in mind that the applicant's record was an aggravating feature of the relevant offences. The present state of the authorities would suggest that, if his Honour, adopted this view he was in error. However, as I pointed out in Hathaway even if, in this respect, his Honour erred it is necessary to give careful consideration to whether this has lead to a sentence being imposed which would cause this Court to intervene. 5 As the Chief Justice pointed out in R v Simpson (2001) 53 NSWLR 704 s 6(3) of the Criminal Appeal Act 1912 imposes the obligation on this Court, if error is identified, to nevertheless consider whether some other sentence to that which was imposed is warranted in law. 6 In the present case the various offences related by Rothman J and the matters on the Form 1 reveal a serious collection of offences more than justifying the sentences which the sentencing judge imposed. 7 I agree with the orders proposed by Rothman J. 8 HISLOP J: I agree with Rothman J. 9 ROTHMAN J: DBN was sentenced for nine offences under 2 indictments. The first indictment consisted of the counts for taking and driving conveyance in contravention of s.154A of the Crimes Act 1900; aggravated break and enter with intent to steal (in company) in contravention of s.113(2) of the Crimes Act. Two counts of malicious damage contrary to s.195(a) of the Crimes Act; and in the alternative to count two a count of aggravated attempt break enter and steal contrary to s.112(2) and s.344A of the Crimes Act. 10 The second indictment was for robbery in company contrary to s.97(1) of the Crimes Act; aggravating stealing from the person, contrary to s.95(1) of the Crimes Act; steal from the person contrary to s.94 of the Crimes Act; a further count of steal from the person contrary to s.94 of the Crimes Act; and a third count of steal from the person contrary to s.94 of the Crimes Act. 11 DBN pleaded not guilty to all of the charges (including the alternate charge) in indictment one and pleaded guilty to all of the charges in indictment two. 12 DBN was convicted of all except the alternative count in the first indictment and was sentenced for all matters at the one time by his Honour Acting Judge Andrew of the District Court. His Honour was asked to take into account, and did, a number of offences contained in a Form One being twelve offences of steal from the person, two offences of attempt to obtain benefit by deception and two offences of steal motor vehicle. 13 His Honour Andrew ADCJ imposed the following sentences: