Citation: Regina v David Paul Elemes [2000] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 2 June 2000
Judge(s): Sully J; Adams J
Background
The appellant was convicted by a jury in the District Court at Dubbo of one count of breaking, entering and stealing, contrary to section 112 of the Crimes Act 1900 (NSW). The offence involved a so-called "ram raid" on a motorcycle shop, in which the appellant and two accomplices forced entry and stole three motorcycles with a total value exceeding $15,000. All three motorcycles were ultimately recovered, two in reasonable condition.
Before trial, the appellant had pleaded not guilty to the break, enter and steal charge but guilty to an alternative charge of stealing. The Crown did not accept that plea, and the matter proceeded to a full jury trial, resulting in a guilty verdict on the more serious count. The appellant was sentenced by Christie DCJ to five years' penal servitude, divided equally between a minimum term of two and a half years and an additional term of two and a half years. Because the appellant was already in custody, the effective sentence was approximately four and a half years, with an effective minimum of just under two years.
The appellant sought leave to appeal against the sentence on three grounds: that the sentencing judge applied a wrong principle concerning the absence of contrition, that excessive weight was given to that absence, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge acted on a wrong principle by treating the absence of contrition as cancelling out other subjective factors favourable to the appellant.
- Whether the sentencing judge gave disproportionate or excessive weight to the appellant's lack of contrition throughout the remarks on sentence.
- Whether the sentence of five years (effectively four and a half years) was manifestly excessive for a ram-raid break, enter and steal in the circumstances.
Decision
On the first ground, Sully J found no error in the sentencing judge's approach. Although the remarks on sentence acknowledged difficulty in extending leniency "absent any sign of contrition," a fair reading of the passage as a whole showed the sentencing judge did not treat the absence of contrition as positively extinguishing other subjective considerations. His Honour had expressly stated he would take rehabilitation prospects into account despite the lack of contrition, noting the appellant's youth and the fact it was his first time in custody.
On the second ground, Sully J accepted that the sentencing judge had repeatedly returned to the absence of contrition throughout the remarks on sentence. However, a mere multiplicity of such references does not establish error. The question is whether that repetition reveals a disproportionate reliance on the factor, and upon reading the remarks as a whole, the Court was not persuaded that it did.
On the third ground, both judges declined to find the sentence manifestly excessive, though Adams J noted the sentence fell toward the upper range for this type of offending. Adams J also commented, without finding legal error, that the remarks on sentence were somewhat inadequate in their explanation of sentencing principles, particularly for the benefit of the offender and the broader community. He emphasised the importance of judicial discretion at first instance, and concluded that, while he might have imposed a lesser sentence himself, the gap between the sentence passed and what he would have imposed was not so great as to manifest an error of law.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A sentencing court does not act on a wrong principle merely by noting the absence of contrition where the offender maintains innocence after conviction, provided other subjective factors are still genuinely brought to account.
- Where an offender continues to assert innocence after a jury verdict, two forms of sentencing discount are unavailable: the utilitarian discount for a guilty plea, and the discount for genuine remorse and acknowledgment of wrongdoing.
- Repeated references to absence of contrition throughout remarks on sentence do not, without more, establish that a sentencing judge gave that factor disproportionate weight. The remarks must be read as a whole.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed the importance of individual judicial discretion in first-instance sentencing, noting that an appellate court's own view of the appropriate sentence does not automatically justify intervention.
- Sentencing statistics showing a sentence falls toward the upper range for the offence type are relevant but not determinative. Adams J found the sentence was in the upper range yet still within the bounds of lawful discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112, 117, 154A
Cases:
- Regina v Fernando (1992) 76 A Crim R 98