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Court of Criminal Appeal 4 October 2000

R v Quarta

[2000] NSWCCA 406

Theft & propertyTraffic & drivingPublic order & justice offences

Citation: R v Quarta [2000] NSWCCA 406
Court: NSW Court of Criminal Appeal
Date: 4 October 2000
Judge(s): Simpson J; Hidden J

Background

The applicant, a young man aged nearly twenty at the time of the offences, pleaded guilty to two counts in the District Court: being an accessory after the fact of robbery in company, and aggravated dangerous driving causing grievous bodily harm. The circumstances of aggravation for the driving offence were that he was fleeing pursuit by police. He also asked the court to take into account several additional matters, including drug possession and supply offences and unlicensed driving.

The underlying facts were serious. The applicant drove two co-offenders to a post office where they conducted an armed robbery, then fled at high speed through residential streets, reaching up to 100 km/h in a 60 km/h zone. The pursuit ended when the applicant collided head-on with a vehicle driven by a 74-year-old woman, who suffered a punctured lung and other injuries requiring hospitalisation.

Judge Woods of the District Court sentenced the applicant to a fixed term of two and a half years on the accessory count, and a total term of five years (minimum three years, additional two years) on the dangerous driving count, with both sentences to run concurrently from the date of arrest.

  • Whether the sentences were manifestly excessive
  • Whether the sentences failed to conform with the guideline judgments in R v Jurisic (aggravated dangerous driving) and R v Henry (accessory after the fact of robbery in company)
  • Whether the sentencing judge gave adequate weight to the applicant's psychological difficulties and below-average intellectual functioning
  • Whether the sentencing judge gave adequate recognition to the applicant's pleas of guilty
  • Whether a comparison with the sentence imposed on a co-offender revealed any error

Decision

The Court of Criminal Appeal found no error in the sentences imposed and dismissed the appeal, though leave to appeal was granted.

On the guideline argument, the Court considered the sentences in light of both the Jurisic and Henry guideline judgments and found the sentences fell within orthodox limits. No departure from the applicable guidelines was established.

On the psychological and intellectual difficulties argument, the Court noted that while the applicant's background was troubled and his psychological difficulties were well documented, there was no clinical evidence of a mental age or disorder of the kind that would reduce his culpability or diminish the relevance of general deterrence as a sentencing consideration. The Court distinguished between a bleak personal history, which was acknowledged, and the kind of mental impairment recognised in the relevant authorities as warranting a reduction in sentence.

On the plea discount, the Court acknowledged that the sentencing judge, who sentenced before the decision in R v Thomson and Houlton, had stated he took the pleas into account but had not quantified the discount as that later decision encouraged. The Court nonetheless concluded that the sentences were consistent with a discount in the ten to twenty-five per cent range endorsed in Thomson, and no error was shown. On the co-offender comparison, the Court accepted that the co-offender Walsh had received a proportionately greater term in respect of the robbery in company offence, reflecting the greater seriousness of his principal involvement, and that the sentencing judge had adequately recognised the distinction.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentences imposed, even where the sentencing judge had not quantified the plea of guilty discount, provided the resulting sentences were consistent with the range endorsed in R v Thomson and Houlton.
  • A troubled personal history and below-average intellectual functioning do not, without more, constitute evidence of a mental impairment sufficient to reduce culpability or diminish the relevance of general deterrence as a sentencing consideration.
  • The Court of Criminal Appeal confirmed that evidence of a defendant's "mental age" or diagnosed disorder is required before the principles from cases such as R v Engert apply to reduce the weight given to general deterrence.
  • Sentencing judges are encouraged, following Thomson, to expressly quantify the discount accorded for a plea of guilty, though the absence of such quantification does not automatically constitute a reviewable error if the ultimate sentence falls within the orthodox range.
  • In dismissing the parity comparison, the Court confirmed that differences in sentence between co-offenders are justified where the sentencing court has clearly recognised differences in the nature and gravity of each offender's participation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 97(1), 349
- Criminal Procedure Act 1986 (NSW), s 21

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Thomson and Houlton [2000] NSWCCA 309
- R v De Simoni (1981) 147 CLR 383
- R v Pearce (1998) 194 CLR 610
- R v Murchie [1999] NSWCCA 424
- R v Fahda (1999) NSWCCA 267
- R v Scagnamiglio (1991) 56 A Crim R 81
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Engert (1995) 84 A Crim R 67
- R v Campion (1992) 64 A Crim R 244
- R v Wright (1997) 93 A Crim R 48