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Court of Criminal Appeal 24 November 2000

R v NASTALY

[2000] NSWCCA 486

Assault & violenceTheft & property

Citation: R v Nastaly [2000] NSWCCA 486
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Barr J; Carruthers AJ

Background

The applicant pleaded guilty in the Local Court to one count of robbery in company and was committed to the District Court for sentencing. The offence involved the applicant and a co-offender approaching a young man in Belmore Park, Sydney. The co-offender held the victim by the neck and repeatedly attempted to stab him with a screwdriver while the applicant took his wallet, stealing $500. The victim suffered minor lacerations.

The co-offender, who was the leader, was armed, and was on parole at the time, had already been sentenced to an effective term of three years six months with a minimum term of one year five months (minus one month pre-sentence custody). The sentencing judge, Blanch CJ DC, regarded that sentence as inadequate.

At the applicant's sentencing, Blanch CJ DC was informed by Crown solicitors that a Crown appeal against the co-offender's sentence had been lodged. That information was incorrect. No such appeal had been filed, and none was ever pursued. Acting on that mistaken belief, Blanch CJ DC sentenced the applicant on the assumption that the co-offender's sentence would be increased on appeal, which directly affected the parity analysis.

  • Whether the sentencing judge fell into error by sentencing the applicant on the false premise that a Crown appeal against the co-offender's sentence had been lodged
  • What the appropriate sentence was for the applicant, having regard to parity with the co-offender's sentence as it actually stood
  • Whether the applicant's demonstrated rehabilitation during custody warranted a reduction below the sentence that parity with the co-offender would otherwise produce

Decision

The Crown conceded that the sentencing judge had been misled and that the sentence imposed on the applicant could not stand. Both the Crown and the applicant agreed that the sentence should be quashed and the applicant re-sentenced, though they differed on the appropriate result.

Barr J accepted the Crown's position that the correct reference point was the sentence Blanch CJ DC himself said he would have imposed had the co-offender's sentence been treated as final: an effective term of three years five months with a non-parole period of eleven months. That sentence already reflected a significant downward adjustment for parity, given that the co-offender had a worse criminal record, was the leader of the offence, and was on parole at the time.

The applicant's counsel argued for a further reduction based on the rehabilitation she had demonstrated while in custody, including completing a hospitality course, ceasing drug use, and rebuilding family relationships. Barr J declined to reduce the sentence further. His Honour observed that the sentencing judge had already been aware of the applicant's family support and her methadone programme, and that the rehabilitation achieved since sentencing was not unexpected in light of the evidence before Blanch CJ DC.

Carruthers AJ agreed with Barr J's reasoning and proposed orders without adding separate reasons.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Original sentence quashed
  • In lieu, a sentence of imprisonment of three years five months imposed, commencing 16 February 2000 and expiring 15 July 2003
  • Non-parole period of eleven months fixed, expiring 15 January 2001
  • Applicant declared entitled to release on parole on 15 January 2001

Key Takeaways

  • A sentence imposed on a materially false factual basis, here the erroneous belief that a Crown appeal had been lodged against a co-offender, is liable to be quashed and the offender re-sentenced from scratch.
  • Parity between co-offenders remains a significant sentencing consideration, but adjustments for parity must reflect the sentences that actually stand, not anticipated outcomes of appeals that were never filed.
  • Where a sentencing judge has already accounted for mitigating circumstances, including family support and drug treatment, post-sentence rehabilitation that was reasonably foreseeable at the time of sentencing does not automatically warrant a further reduction on re-sentencing.
  • The Court of Criminal Appeal applied the sentence the original sentencing judge indicated he would have imposed, treating that figure as the appropriate parity-adjusted outcome once the false premise was removed.
  • In dismissing the claim for a shorter sentence, the Court emphasised that the eleven-month non-parole period was already substantially lower than the applicant might otherwise have received, given the objective seriousness of the offence and the co-offender's own inadequate sentence.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment as provided. The offence was robbery in company, charged under the relevant provisions of NSW criminal law, but no specific statutory reference appears in the available judgment text.