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Court of Criminal Appeal 25 March 2002

Regina v Mortada

[2002] NSWCCA 152

Assault & violenceTheft & property

Citation: Regina v Mortada [2002] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 25 March 2002
Judge(s): Levine J; Carruthers AJ

Background

The applicant was convicted in the Sydney District Court on two offences: stealing from the person (under s 94 of the Crimes Act 1900, maximum 14 years) and robbery in company (under s 97(1), maximum 20 years). The first offence, in May 1999, involved the applicant threatening and robbing an injured man outside a Kings Cross bar. The second, in January 2000, involved luring a victim into a car, driving him to Elizabeth Bay, and assaulting him with an accomplice to steal a gold chain, a bracelet, and cash.

The applicant was sentenced by Hock DCJ in the Sydney District Court in August 2001. For the steal from the person count, the sentencing judge imposed a fixed term of six months. For the robbery in company, she imposed four years with a non-parole period of two years.

The applicant sought leave to appeal, arguing that the sentencing judge had applied too low a discount for his guilty pleas and had thereby erred in the exercise of her sentencing discretion.

  • Whether the sentencing judge applied the correct discount for the utilitarian value of the applicant's guilty plea.
  • Whether the plea was entered at the earliest possible opportunity, having regard to the procedural history of the proceedings.
  • Whether mathematical errors in the sentencing exercise required correction.

Decision

The central issue was the 10 percent discount Hock DCJ applied for the utilitarian value of the guilty plea. The Court of Criminal Appeal found that this discount was too low and reflected a misunderstanding of the forensic history of the charge and the plea. Levine J concluded that a 20 percent discount was appropriate, noting that the history of the proceedings did not detract from the characterisation of the plea as being entered at the earliest possible opportunity.

Apart from the plea discount error, the Court largely endorsed the sentencing judge's approach. Levine J described the non-parole period, viewed in isolation as 50 percent of the robbery in company sentence, as generous, and acknowledged that the sentencing judge had otherwise properly taken into account the relevant factors, including the applicant's first time in custody, the cumulation of sentences, and prospects of rehabilitation.

The Court resolved complications arising from the mathematical exercise of applying the corrected discount in favour of the applicant. Starting from the pre-discount figure and applying the 20 percent reduction produced a revised head sentence of three years and six months for the robbery in company count, with a proportionate non-parole period of one year and nine months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in relation to the sentence imposed for count 4 (robbery in company).
  • Sentence of four years imprisonment with a two-year non-parole period set aside.
  • In substitution: imprisonment for three years and six months, commencing 19 November 2001 and expiring 18 May 2005, with a non-parole period of one year and nine months, commencing 19 November 2001 and expiring 18 August 2003.
  • Sentence for the steal from the person count (fixed term of six months) was not disturbed.

Key Takeaways

  • A 10 percent guilty plea discount was held to be inadequate where the applicant had effectively entered a plea at the earliest practicable opportunity, warranting a 20 percent discount instead.
  • The Court of Criminal Appeal confirmed that the forensic history of proceedings, including earlier factual disputes resolved before the plea was formally entered, does not necessarily foreclose recognition of a plea as having been made at the earliest available opportunity.
  • Where mathematical uncertainty arises in the sentencing process, the Court of Criminal Appeal resolved ambiguity in favour of the applicant.
  • In allowing the appeal, the Court of Criminal Appeal affirmed the sentencing judge's findings on special circumstances and the other factors taken into account, limiting the correction to the plea discount error alone.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, the Court remained mindful of offending committed while on bail and shortly after a community service order, which formed part of the relevant sentencing context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94 (steal from the person) and 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)

Cases:
- Regina v Henry (1999) 46 NSWLR 346