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Court of Criminal Appeal 23 November 2001

REGINA v MAROUCHE

[2001] NSWCCA 500

Theft & propertyFirearms & weapons

Citation: Regina v Marouche [2001] NSWCCA 500
Court: NSW Court of Criminal Appeal
Date: 23 November 2001
Judge(s): Barr J, Adams J

Background

The applicant pleaded guilty in the District Court to a series of serious offences committed over three days in late December 1999. The charges included two counts of breaking and entering in circumstances of special aggravation while armed with a pistol, two further break and enter offences while armed with a syringe containing Hepatitis C-infected blood, and one count of being armed with intent to rob. The victims were predominantly elderly. A further twenty-nine break and enter offences were taken into account on a schedule (Form 1).

The sentencing judge, Sides DCJ, imposed an effective head sentence of twelve years with a non-parole period of eight years. The applicant sought leave to appeal, arguing the sentence was infected by error.

The central issue on appeal was that the sentencing judge had omitted to take into account two significant mitigating factors: the applicant's voluntary admissions in respect of the twenty-nine schedule matters, which police could not otherwise have charged, and the applicant's substantial assistance to police by providing information to authorities.

  • Whether the sentencing judge erred by failing to take into account the applicant's assistance to law enforcement authorities, as required by section 23 of the Crimes (Sentencing Procedure) Act 1999
  • Whether any reduction in sentence resulting from that assistance would be "unreasonably disproportionate" to the nature and circumstances of the offences, contrary to section 23(3)
  • Whether the applicant's voluntary admissions regarding the schedule matters constituted a further mitigating consideration

Decision

Adams J, delivering the first judgment, found that the sentencing judge had carefully considered extensive material and prepared thorough reasons, but had overlooked the applicant's assistance to police. The Crown Prosecutor had placed that assistance before the court during the plea, but the judge failed to recall it when later drafting the sentence. This omission constituted an error requiring the Court of Criminal Appeal to re-exercise the sentencing discretion.

Adams J noted that both the common law (as stated in Cartwright v The Queen) and section 23 of the Crimes (Sentencing Procedure) Act 1999 required the sentencing court to consider a reduction in penalty for police assistance. The statutory framework requires the court first to identify the penalty it would otherwise impose, and then to consider whether a lesser penalty would be unreasonably disproportionate to the offence. Adams J expressed the view that this did not alter the common law approach in substance.

Barr J agreed, noting that the Crown ultimately accepted the sentencing judge had failed to apply section 23. The Crown argued that any reduction producing a head sentence below twelve years or a non-parole period below eight years would breach section 23(3). The Court rejected that submission, finding that, while the offences were very serious and the proposed sentences would not ordinarily reflect their objective gravity, NSW policy provides that substantial assistance to authorities warrants sentences that might otherwise appear inadequate. The proposed sentences were not so low as to be unreasonably disproportionate.

Orders Made

  • Leave to appeal against sentence granted
  • Sentence on count one quashed and substituted with seven years imprisonment, commencing 26 December 1999
  • Sentence on count four substituted with six and a half years imprisonment
  • All other sentences confirmed
  • Non-parole period of six and a half years imposed, with the earliest parole eligibility date of 25 June 2006

Key Takeaways

  • Under section 23 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to consider reducing a penalty where an offender has provided substantial assistance to law enforcement authorities; failure to do so constitutes a sentencing error.
  • A sentencing court applying section 23 must first identify the penalty it would otherwise impose, then assess whether the lesser penalty is unreasonably disproportionate to the nature and circumstances of the offence.
  • The Court of Criminal Appeal confirmed that section 23 does not impose a different sentencing procedure from the pre-existing common law position on assistance to authorities.
  • Where section 23(3) is raised as a bar to reduction, the court must weigh the seriousness of the offences against the established NSW policy that substantial police assistance warrants sentences that would otherwise appear inadequate for the objective gravity of the conduct.
  • Voluntary admissions enabling charges that police could not otherwise have brought were treated as a significant mitigating factor, particularly as an indicator of rehabilitation prospects for a young offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Cartwright v The Queen (1989) D17 NSWLR 243
- R v Thomson and Houlton (2000) 49 NSWLR 383