Dawson v R [2015] NSWCCA 236

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dawson v R [2015] NSWCCA 236 Hearing dates: 7 August 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Before: Macfarlan JA Adams J Fagan J Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in applying principle of totality – concurrency or accumulation – manifest excess Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Category: Principal judgment Parties: James Timothy Dawson (Applicant) Regina (Respondent) Representation: Counsel: R Jankowski (Applicant) H Baker (Respondent)

Solicitors: P Murphy (Applicant) C Hyland – Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/220210 Publication restriction: None Decision under appeal Court or tribunal: District Court at Newcastle Jurisdiction: Criminal Citation: [2014] NSWDC 117 Date of Decision: 27 June 2014 Before: Judge P Berman SC File Number(s): 2013/220210

Judgment 1. MACFARLAN JA: I agree with Fagan J. 2. ADAMS J: I agree with Fagan J. 3. FAGAN J: James Dawson applies for leave to appeal against sentences passed upon him in the District Court at Newcastle on 27 June 2014 for four offences, all committed on 7 July 2013. The Applicant pleaded guilty to each charge. The sentences determined in the District Court were as follows. The maximum penalty for each offence is shown in brackets. 1. Count 1: Drive whilst subject of police pursuit (s 51B, Crimes Act 1900 (NSW)). Imprisonment for 18 months, comprising a non-parole period of 9 months and a balance of the term of 9 months. (Maximum 3 years). 2. Count 2: Use of offensive weapon, a knife, to prevent lawful apprehension of himself (s 33B(1)(a), Crimes Act). Imprisonment for 4 years, with a non-parole period of 3 years and a balance of the term of 1 year. (Maximum 12 years). 3. Count 3: Aggravated carjacking (s 154C(2), Crimes Act). Imprisonment for 7 years with a non-parole period of 4 years and a balance of the term of 3 years. (Maximum 14 years, standard non-parole period 5 years). 4. Count 4: Drive whilst subject of police pursuit (s 51B, Crimes Act). Imprisonment for 2 years with a non-parole period of 12 months and a balance of the term of 12 months. (Maximum penalty 5 years, for a second offence). 1. On Count 3 the learned sentencing judge took into account four further offences on a Form 1 pursuant to s 33, Crimes (Sentencing Procedure) Act 1999 (NSW). Those offences were also committed on 7 July 2013. They were as follows: 1. Larceny of a motor vehicle (s 154(1)(a), Crimes Act), being a Honda Prelude motor vehicle which the Applicant drove during the first police pursuit, the subject of Count 1. (Maximum 5 years). 2. Dishonestly obtain financial advantage by deception (s 192E(1)(a), Crimes Act). Shortly before the first pursuit the Applicant put 41 litres of petrol into the stolen Honda Prelude at a service station and drove off without paying. (Maximum 10 years). 3. Fail to stop and assist after motor vehicle impact causing injury (s 146, Road Transport Act 2013 (NSW)). During the first police pursuit (Count 1) the Applicant crashed the Honda Prelude into another vehicle and injured the two occupants. He did not stop. (Maximum 18 months). 4. Detain person with intent to obtain advantage (s 86(1)(b), Crimes Act). After the first police pursuit had ended with the Honda Prelude off the road and undrivable, the Applicant flagged down another vehicle and forced the driver of it at knifepoint to drive away from the location. The taking of the vehicle in these circumstances is the carjacking, the subject of Count 1. This Form 3 offence is concerned with the Applicant having detained the driver. (Maximum 14 years). 1. Counts 1 to 4 may be ranked in ascending order of seriousness as follows: Count 1, followed by Count 4, then Count 2, then Count 3. Appropriately, the individual sentences were determined by his Honour in a corresponding order of severity. 2. The learned sentencing judge ordered that the shortest sentence, that for Count 1, should commence first on 7 January 2014. That date appears to have been selected in the following circumstances. The second of the police pursuits on 7 July 2013 (the subject of Count 4) ended with the Applicant escaping. He was arrested twelve days later on 19 July 2014 in the course of committing other offences. From that date he remained in custody. He was then charged with yet further offences which had been committed on 17 July 2013. In April 2014 he was sentenced by the Local Court for the offences of both 17 and 19 July 2013. The Local Court imposed terms of imprisonment, for which the last expiring non-parole period ended on 21 May 2014. 3. The learned sentencing judge considered that there should be only partial accumulation of the sentences for Counts 1 to 4 concerning the offences of 7 July 2013 with the sentences for the offences committed on 17 and 19 July 2013. The effect of his Honour ordering that the terms of imprisonment with which this Court is now concerned should commence on 7 January 2014 was to allow four and a half months of concurrency with the Local Court sentences in respect of the offences of 17 and 19 July 2013. The Applicant makes no complaint about this aspect of the custody dates determined by his Honour. 4. The sentences for Counts 4, 2 and 3 were ordered to commence on 7 July 2014, 7 January 2015 and 7 July 2016, respectively. This resulted in an accumulation of 2 years and 6 months to be served in addition to the longest individual sentence, being that for Count 3 (7 years with a non-parole period of 4 years). The result was an effective non-parole period of 6 years and 6 months and a balance of the term, overall, of 3 years. 5. The grounds of appeal are: 1. The sentencing judge, in determining totality of sentence, erred by inadequately applying partial concurrency as between each individual sentence. 2. As a consequence of Ground 1 the overall sentence imposed was manifestly excessive. 1. In written submissions on behalf of the Applicant it was expressly "not submitted that any of the four individual sentences imposed are manifestly excessive". Further: "It is equally not submitted that the learned sentencing judge erred in not making any sentence imposed totally concurrent with any other sentence." 1. Affirmatively, written submissions on behalf of the Applicant asserted specific error in that his Honour did not adopt a measure of concurrency which, so it was said, was called for by the following features of the entire episode of 7 July 2013: "similarity between offences"; "similarity in criminality"; "common intention of avoiding apprehension (and in this sense forming one episode of criminality)"; "shortness of time over which the offences occurred". It was submitted that these features "point more toward concurrence than accumulation". 1. In respect of Ground 2 it was argued that even if this Court should not be persuaded as to specific error in the manner in which his Honour partly accumulated the sentences, nevertheless "the overall sentence imposed, applying totality, is manifestly excessive". Both grounds, thus argued, require consideration of the facts of the offences and a review of the Applicant's antecedents and subjective circumstances.