R v Dawson [2000] NSWCCA 433 (18 February 2000)

Last Updated: 10 November 2000

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v John Steven DAWSON [2000] NSWCCA 433

FILE NUMBER(S):

60684/99

HEARING DATE(S): 18/2/00

JUDGMENT DATE: 18/02/2000

PARTIES:

Crown

Dawson, John Steven

JUDGMENT OF: Ireland AJ Hulme J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0341

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:

Crown - D C Frearson

Respondent - PJD Hamill

SOLICITORS:

Crown - S E O'Connor

Respondent - Brenda Duchen

CATCHWORDS:

Crown Appeal - s5D(1) Criminal Appeal Act;

Serious offences in contravention of S 111(3) Crimes Act (max. penalty 20 yrs);

Multiple offences contrary to S 178BA (dishonsestly obtain money);

Question whether 2 yrs penal servitude to be served by periodic detention is manifestly inadequate;

Respondent at crossroads of life having made impressive efforts to turn his life around;

In exercise of discretion appeal against lenient sentence dismissed.

LEGISLATION CITED:

Crimes Act 1900

Criminal Procedure Act 1986

DECISION:

Crown appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60684/99

IRELAND J

HULME J

SMART AJ

Friday, 18 February, 2000

REGINA -v- John Steven DAWSON

JUDGMENT

1 IRELAND J: This is an appeal by the Director of Public Prosecutions, pursuant to S 5D of the Criminal Appeal Act, 1912, against the claimed inadequacy of sentence imposed upon the respondent by Judge Hosking QC at the District Court Sydney on 15 October, 1999.

2 On 13 July, 1999 the respondent pleaded guilty at the District Court at Sydney to the counts contained in two indictments, the first of which alleged that on 29 June, 1997 at Petersham he entered the dwelling house of Raymond Angus situated at 13 Marshall Street with intent to steal certain property of Raymond Angus and immediately after entering the dwelling house, did wound Raymond Angus and Ian Smith.

3 That charge was laid under S 111(3) of the Crimes Act, 1900 and carries a maximum penalty of penal servitude for 20 years.

4 The second indictment relates to a charge of obtain benefit by deception in contravention of S 178BA of the Crimes Act, 1900. The indictment contains six counts of dishonestly obtaining money, the offences having taken place between 7th February and 1st April, 1997 - the amounts totalling $4,270. Judge Hosking took into account on a Form 1, ten further offences under S 178BA, totalling $8,540 and one charge of larceny regarding $300, the money in each case being the property of Raymond Angus.

5 On the matters contained in the first indictment, the respondent was sentenced to 2 years penal servitude to be served by way of periodic detention, to commence on 22 October, 1999. In imposing that sentence, the Form 1 matters were taken into account.

6 On the second indictment, a sentence of 12 months imprisonment on each of the six counts was imposed, to be served concurrently with the matters contained in the first indictment by way of periodic detention commencing on the same date, that is to say 22 October, 1999.

7 The facts relating to the charges are not in dispute. They have been shortly stated in the written submissions furnished by Mr Frearson, counsel for the appellant, in the following terms:-

8 Re: Count 1: On 29 June, 1997 the respondent entered the home of Raymond Angus at Petersham. He gained entry to the house despite attempts by Angus to stop him. The respondent pushed Angus to the floor. He entered Angus' bedroom where he took a wallet and attempted to depart. Angus and another man, Ian Smith, struggled with the respondent to stop him leaving. In the course of this struggle, they were both struck with a metal pipe. Mr Angus retrieved the wallet and the respondent ran from the premises. Mr Angus suffered injuries including lacerations to the hand and head, both of which required sutures. X-rays revealed undisplaced fractures to the skull. Mr Ian Smith received a laceration to the head, which required sutures and a fracture to his right forearm.

9 These were serious injuries, I nevertheless note that Mr Smith was discharged on the day of admission, that is to say on 29 June, 1997 and Mr Angus was discharged from hospital on the next day, 30 June, 1997.

10 The section 178BA charges relate to the use by the respondent of a number of Mastercards that belonged to Raymond Angus over the period February to May, 1997, the respondent having obtained these cards from Mr Angus. The PIN number was kept with the cards as Mr Angus suffered from memory loss.

11 In his succinct and very much to the point written submissions, Mr Frearson has set out the following subjective features considered by the learned sentencing judge:-

12 1. Sexual abuse of the respondent as a teenager which has led to a fragile emotional condition and a serious drug problem.

13 2. Genuine expressions of remorse.

14 3. Impressive efforts to turn his life around.

15 4. The respondent has reached a turning point in his life.

16 5. The respondent gave evidence during the sentencing proceedings.

17 In support of his contention that the sentence imposed upon the respondent was manifestly inadequate, counsel has identified a number of sentencing principles, supported by appropriate references to authorities. These include:-

18 (a) The need for the sentence imposed to reflect the objective seriousness of the crime - R -v- Rushby (1977) 1 NSWLR 594; Veen -v- The Queen (No 1) [1979] HCA 7; 143 CLR 458; R -v- Dodd (1991) 57 A Crim R 349 at 354.

19 (b) The importance of both special and general deterrence - R -v- Radich [1954] NZLR 86 at 87.

20 (c) The need to maintain reasonable proportion between a sentence which will deter others whilst tempering the effect of the sentence with humanity, the latter usually being subsidiary to the former.

21 (d) The necessary constraint to allowing subjective features to blind justice to the objective seriousness of the crime - R -v- Martin (unreported - NSWCCA - 19.3.92).

22 (e) Recognition that some measure of rehabilitation has been achieved necessarily remains subsidiary to the need for a sentence to act as a deterrent to the public - R -v- Gordon (1994) 71 A Crim R 459 at 469.

23 Our attention has also been brought to the fact of the seriousness of the matters set out in both indictments and the fact that the respondent's prior record for break, enter and steal offences is a significant consideration.

24 A further point made by the appellant is that the reference by the learned sentencing judge to giving a credit for 10 months pre-sentence custody, in the period 21.12.97 to 6.10.98 - i.e. 9 months and 15 days, was in respect of a 9 months fixed term referable to unrelated matters. Accordingly, the submission is made that an allowance of 10 months offends the general principle to be found in such authorities as R -v- McHugh (1985) 1 NSWLR 588 and R -v- S.A.E. (unreported - NSWCCA - 3.4.1997) which confines such allowances to custody exclusively referable to the crime for which the offender is being sentenced.

25 In this regard the concession made by the Crown at the sentencing hearing is not binding on this court - R -v- Qi (unreported - NSWCCA - 22.6.98).

26 In the present case the position is not altogether straight forward in that the passage appearing at p 17 of the transcript on sentence indicates that the 9 month sentence, being a fixed term, was imposed at a time when the respondent was bail refused with regard to the present matters and as a practical matter a custodial sentence was imposed in the Local Court in circumstances where, absent the fact that the respondent was bail refused, such a course may not have been followed. In any event, the considerations of totality would have warranted Judge Hosking taking into account the period the respondent spent in custody. Certainly the Crown at the sentence hearing was in no doubt that his Honour was appropriately to take the period spent in custody by the respondent into consideration.

27 The learned sentencing judge took time to consider the material placed before him and to reach a decision on the appropriate sentence to be imposed. He frankly disclosed his thought processes, both at the initial stage, and after having reflected at some length upon the matter. The care with which his Honour considered the whole of the material before him and the considerations to be borne in mind is plain to see in the remarks on sentence. It is also clear from what was said that his Honour was mindful of the fact that the 9 month period in custody was served with regard to unrelated matters, albeit overlapping with the bail refused period regarding the matters in question.

28 One of the factors which bears upon the sentencing considerations in this case is that the serious offences in the first indictment had taken place two and a half years before sentencing and in the interim period there had been clear and cogent evidence of rehabilitation and a turn around in the respondent's career path.

29 This consideration has been brought to our attention by counsel for the respondent in the reference to Mill -v- The Queen (1988) 166 CLR 59 where the High Court cited with approval (at 64) the passage from the judgment of Street CJ in R -v- Todd (1982) 2 NSWLR 517 at 519-520:-

"where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing the dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner".

30 It is submitted, on behalf of the respondent, that the approach adopted by the learned sentencing judge displayed the "understanding and flexibility of approach" required in the particular circumstances of the case.

31 There is, in my view, force in this submission.

32 For my part, I confess to being troubled by this appeal. Given the gravity of the offences and their multiplicity, at first blush, the sentence imposed has the indicia of being manifestly inadequate. In other respects I am not persuaded sentencing error has been demonstrated.

33 The subjective aspect which weighed heavily in the respondent's favour was expressed by Judge Hosking in these terms:-

"My finding is that the prisoner has reached a turning point in his life and this has highly favourable consequences for the prisoner. That this is not a finding based upon sympathy or sentiment. It has a solid evidentiary basis in the reports of Illawarra Health Service which became Exhibit 1 and 2".

34 I would add that the favourable consequences extend also to the community.

35 Where, as in this case, it would appear that notwithstanding serious transgressions of the law in the past, an offender has convincingly demonstrated that he has reached the cross-roads and moved along the path to rehabilitation, this court has been reluctant to interfere, when a judge has exercised leniency to facilitate such rehabilitation.

36 I have reached the conclusion that that is the proper course to be adopted in this case.

37 For these reasons, I would propose that in the exercise of the available discretion this court should dismiss the Crown appeal.

38 HULME J: I agree with the orders proposed and with his Honour's reasons.

39 I would add only this: Although I do not embrace, in their precise terms, all of the remarks of King CJ on R -v- Ozenkowski (1982) 5 A Crim R 594, there is much with which I do agree. In this case the sentencing judge extended leniency to the respondent. In my view, this court should echo that approach.

40 SMART AJ: I agree with Ireland J.

41 IRELAND J: The order of the court will be as I have proposed.

LAST UPDATED: 07/11/2000