Citation: Regina v Leoni [1999] NSWCCA 14
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 1999
Judge(s): Abadee J, Barr J, Adams J
Background
The appellant pleaded guilty in the Sydney District Court to robbery in company under s 97(1) of the Crimes Act 1900, in satisfaction of an indictment that also included a charge of robbery with wounding. The offence involved a home invasion at Vaucluse in which a 65-year-old woman was terrorised, physically assaulted, and robbed by three people: the appellant and two younger accomplices. The appellant had instigated the offence, planning it against a former landlord.
After the plea was entered, the appellant's counsel came across a New Zealand decision, R v Galey (1985) 1 NZLR 230, which prompted him to reconsider the legal advice he had given. He sought and obtained an adjournment, then formally applied before Judge Delaney DCJ for leave to withdraw the plea. Judge Delaney refused that application and proceeded to sentence the appellant to five years' penal servitude, with a minimum term of 33 months.
The appellant appealed to the Court of Criminal Appeal on three grounds: that his Honour erred in refusing to allow the plea to be withdrawn; alternatively, that the Court should exercise a discretion to quash the conviction and substitute one for robbery simpliciter; and, in any event, that the sentence was excessive.
Legal Issues
- Whether the trial judge erred in refusing leave to withdraw the guilty plea to robbery in company
- Whether the appellant's conduct and state of mind at the time of the offence satisfied the legal elements of robbery "in company" under s 97(1) of the Crimes Act 1900, particularly the mental element required
- Whether, if the conviction were to stand, the sentence of five years' penal servitude was excessive having regard to the appellant's subjective circumstances and parity with his co-offender
Decision
On the application to withdraw the plea, the Court examined whether the appellant had a genuine legal basis to contest the charge. The argument, derived from R v Galey, concerned the mental element required for the "in company" component of the offence, specifically whether a participant needed to know or intend that their co-offenders were present and acting together. The Court concluded that, on the facts before it, the appellant plainly knew he was acting with others and had in fact organised the entire enterprise. Any issue raised by Galey did not assist him.
On the question of what "in company" requires, the Court considered the phrase in the context of s 97(1). It confirmed that acting in company involves more than mere physical proximity; there must be a combined or joint presence that gives the enterprise a quality of additional menace or threat. On the facts of this case, all three participants were present at or about the scene, acting in concert under the appellant's direction. The elements of the offence were made out, and there was no basis to suggest the plea was entered on a false legal premise.
Turning to sentence, the Court found no error in Judge Delaney's weighing of the relevant factors. The Court acknowledged the appellant's mitigating circumstances, including his early confession to police, his guilty plea, his role as primary carer for a young daughter, his completion of vocational courses, and a positive employment record. Against these, the Court noted the seriousness of the offence and the gratuitous violence inflicted on an elderly victim. The Court also addressed parity with the co-offender Brincat, who received a shorter sentence, but observed that Brincat was younger, did not instigate the offence, and received a substantial discount for agreeing to give evidence. The Court noted there was, if anything, scope for a more severe sentence than the one imposed.
Orders Made
- The appeal against the refusal to allow the guilty plea to be withdrawn is dismissed (leave granted if necessary, appeal dismissed).
- The application for leave to appeal against sentence is refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that a plea of guilty will not readily be withdrawn where the legal basis for doing so lacks substance on the facts, even where counsel has reconsidered the advice given before the plea was entered.
- Acting "in company" for the purposes of s 97(1) of the Crimes Act 1900 requires a combined or joint presence that lends additional menace to the offence, not merely incidental co-location; a person who organises and directs co-offenders will squarely satisfy this element.
- Where a foreign or interstate authority raises a point of law, its relevance turns on whether it actually assists the accused on the facts of the particular case; a theoretically interesting legal question will not ground a withdrawal of plea if the facts leave no room for doubt about the elements being satisfied.
- In assessing sentence, a co-offender's lesser penalty does not automatically establish a parity argument; courts examine differences in age, role, instigation, and cooperation with authorities when comparing outcomes.
- Mitigating factors such as an early guilty plea, prompt admissions to police, genuine family responsibilities, and a positive employment history are relevant to sentence, but cannot overcome the gravity of a serious, premeditated home invasion involving violence against a vulnerable victim.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Criminal Law Consolidation Act 1935–1976 (SA)
Cases
- R v Galey (1985) 1 NZLR 230
- R v Brougham (1986) 43 SASR 187
- R v Cooper (1978) 17 SASR 472
- R v Langlands (1932) VLR 450
- McAuliffe (1995) 79 A Crim R 229
- R v Howard (1987) 1 NZLR 347
- Ferrer-Esis (1991) 55 A Crim R 231
- R v Chiron (1980) 1 NSWLR 218
- Ryan (1995) 90 A Crim R 191
- Boag (1994) 73 A Crim R 35
- Astor v Hayes (1988) A Crim R 219