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Court of Criminal Appeal 25 June 2001

R v WATEGO

[2001] NSWCCA 236

Theft & property

Citation: R v Watego [2001] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 25 June 2001
Judge(s): Barr J, Howie J

Background

The applicant was sentenced in the District Court by Goldring DCJ on 24 August 2000 for three offences of breaking, entering and stealing. His Honour imposed concurrent sentences of three years and nine months on each count, with a non-parole period of two years and nine months. Six further matters were taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999.

The offences occurred over two consecutive days in June 2000, when the applicant broke into residential premises in the Illawarra region while an associate, Harrison, waited in a vehicle. Police intercepted the pair after the third offence and found stolen electrical goods in the car. The applicant co-operated with police and admitted to all three offences, including volunteering the two he committed on the previous day.

The applicant had a lengthy criminal history linked to heroin addiction and had been receiving custodial sentences since 1996. He sought leave to appeal on four grounds, contending the sentencing judge had made legal errors in fixing the non-parole period, in comparing his sentence with Harrison's, in discounting for his co-operation, and in reaching a starting point of five years.

  • Whether the sentencing judge failed to give practical effect to his own finding of special circumstances justifying a non-parole period shorter than the statutory three-quarters ratio
  • Whether the applicant had a justifiable sense of grievance when his sentence was compared to that imposed on Harrison, his co-offender
  • Whether a 25 per cent discount for guilty plea and co-operation with police was adequate in the circumstances
  • Whether the starting sentence of five years was manifestly excessive, particularly given the offences occurred over two days

Decision

Ground one (special circumstances): The sentencing judge expressly found that the applicant's background warranted special circumstances, enabling a non-parole period shorter than three-quarters of the head sentence. However, the resulting parole period was only marginally longer than the standard ratio. The Crown conceded, and the Court of Criminal Appeal agreed, that the sentencing judge had overlooked his stated intention. The Court intervened and fixed a new non-parole period of two years, producing a substantially longer parole period.

Ground two (parity with Harrison): Harrison was the applicant's co-offender and was re-sentenced by the Court of Criminal Appeal following a Crown appeal, receiving three years with an eighteen-month non-parole period. The Court rejected the parity complaint. The applicant was the principal offender who committed the physical break-ins; Harrison played a subsidiary role. Moreover, the applicant faced nine offences in total compared to Harrison's five, and sentences imposed on Crown appeal must, by established principle, be the most lenient reasonably available. No justifiable sense of grievance arose.

Ground three (co-operation discount): The Court declined to disturb the 25 per cent discount. Many of the applicant's admissions were of matters that were difficult or impossible to deny, including the offence in progress at the time of arrest. His volunteering of additional matters was acknowledged, but this did not establish that the sentencing judge had given insufficient weight to his frankness overall.

Ground four (manifest excess): The Court rejected the submission that the five-year starting point was too high, finding it squarely within the sentencing discretion when the full criminality of all nine offences was considered. The submission was characterised as misconceived because it focused only on the three principal offences and ignored the matters taken into account under s 32.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences quashed
  • On the first count (with the s 32 matters taken into account): sentence of three years and nine months commencing 6 June 2000, expiring 5 March 2004; non-parole period of two years expiring 5 June 2002
  • On each remaining count: concurrent sentence of eighteen months commencing 6 June 2000, expiring 5 December 2001; no separate non-parole period required given the sentence on the first count

Key Takeaways

  • A sentencing court that expressly finds special circumstances must translate that finding into a non-parole period that meaningfully reflects the intended extension of parole supervision; a marginal adjustment is insufficient and constitutes an error warranting appellate intervention.
  • Parity arguments require careful analysis of the respective roles, criminal records, and total criminality of co-offenders, not merely a comparison of the headline sentences.
  • Sentences imposed by the Court of Criminal Appeal on a Crown appeal are, by established principle, the most lenient reasonably available in the circumstances, which limits their utility as a parity benchmark.
  • Where an offender's admissions largely acknowledge facts already beyond dispute, the weight given to co-operation with police will be correspondingly limited.
  • Under Pearce v The Queen (1998) HCA 57, concurrent sentences for multiple offences must be structured to reflect the total criminality, and the Court restructured the sentences accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (taking additional offences into account on sentencing)

Cases:
- R v Harrison [2001] NSWCCA 79
- Pearce v The Queen [1998] HCA 57