Background
Daniel Peter Forbes was convicted after a jury trial of specially aggravated break and enter and commit a serious indictable offence—armed robbery in company—contrary to s 112(3) of the Crimes Act 1900 (NSW), and six counts of detaining a person for advantage in company contrary to s 86(2)(a). Forbes and a co-offender broke into the Sussex Inlet RSL after closing, carrying sledgehammers; the co-offender also carried what appeared to be a sawn-off shotgun, although it was not proved capable of being fired. They stole $62,345 and locked six staff members in a safe for about 20 minutes. No victim suffered physical injury.
The District Court of New South Wales imposed an aggregate sentence of 17 years’ imprisonment with a 10-year non-parole period. Forbes sought leave to appeal on the sole ground that the sentence was manifestly excessive. He relied partly on Judicial Information Research System statistics showing that his sentence was the highest recorded for an offence under s 112(3), together with decisions involving broadly comparable offending.
The Court’s Holding
The Court granted leave, allowed the appeal and held that the aggregate sentence was manifestly excessive. Muston J, with Bell CJ and Mitchelmore JA agreeing, cautioned that sentencing statistics are a blunt instrument, particularly for an offence encompassing widely varying conduct. Nevertheless, because Forbes’s sentence was a significant statistical outlier, it required careful scrutiny against the facts of his case and the circumstances of other broadly comparable cases.
The 17-year sentence was not merely markedly different from sentences imposed elsewhere but wholly disproportionate to Forbes’s offending. The next-highest identified sentence concerned significantly more serious conduct, including an extremely violent home invasion in which two victims suffered life-altering stabbing injuries. The Court found that the District Court had applied excessive accumulation to the indicative sentences and had failed properly to account for totality.
Resentencing afresh, the Court placed the s 112(3) offence at the upper end of the mid-range of objective seriousness and each detention offence some way below the mid-range. It found that Forbes’s childhood hardship reduced his moral culpability, that he had good prospects of rehabilitation, and that his custodial experience had involved significant hardship. Because the offences were interrelated, only a very small degree of accumulation was warranted. The Court imposed an aggregate term of 10 years from 9 May 2022, with a seven-year non-parole period expiring on 8 May 2029.
Key Takeaways
- Sentencing statistics do not determine the proper sentence, but a pronounced statistical outlier may justify close scrutiny against the facts of comparable cases.
- A sentence is manifestly excessive when it falls so far outside the available range that error can be inferred; it is not enough that another court might have sentenced differently.
- When closely related offences arise from the same criminal episode, accumulation must be limited as necessary to reflect distinct criminality, and the aggregate sentence must remain proportionate under the totality principle.
Why It Matters
The decision illustrates how comparative sentencing material can help establish manifest excess without becoming a numerical tariff. Courts must examine the underlying conduct, especially where the statutory offence covers a broad range of seriousness.
It also underscores that aggregate sentencing requires careful attention to proportionality and totality. Separate offences involving multiple victims may warrant some accumulation, but an aggregate term cannot exceed what fairly reflects the offender’s overall criminality.