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Court of Criminal Appeal 10 May 2002

R v Irani

[2002] NSWCCA 153

HomicideFraud & dishonesty

Citation: R v Irani [2002] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 10 May 2002
Judges: Sheller JA, Levine J, Simpson J

Background

The applicant pleaded guilty to murder following a paid assault that turned fatal. He had been engaged by an acquaintance to physically incapacitate a man for two to three weeks, for payment of $3,000, so that a third party could carry out workplace fraud undetected. Armed with a hammer and a knife, the applicant attacked the victim near his home, stabbing him six times. One stab wound pierced the victim's lung and aorta, causing his death.

After initially lying to police twice, the applicant made a full confession on his third interview and agreed to give evidence against his co-offenders. He maintained a plea of not guilty until February 2001, roughly thirteen months after his confession, despite having told a psychiatrist in June 2000 that he intended to plead guilty. He was sentenced by Barr J in the Supreme Court to twenty years imprisonment with a fifteen-year non-parole period.

The applicant sought leave to appeal against the severity of that sentence, relying on his youth, drug addiction, cooperation with authorities, expression of remorse, and the sentencing judge's approach to the question of "special circumstances" under the sentencing legislation.

  • Whether the twenty-year head sentence with a fifteen-year non-parole period was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave sufficient weight to the applicant's youth at the time of the offence (he was nineteen years and eleven months old).
  • Whether the sentencing judge gave adequate weight to the applicant's guilty plea, cooperation with police, and his honoured promise to give evidence against a co-offender.
  • Whether the sentencing judge erred in declining to find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, which would have allowed a departure from the standard proportions between the head sentence and the non-parole period.
  • Whether protective custody conditions, as a consequence of giving evidence against a co-offender, was a matter the sentencing judge was obliged to weigh more heavily.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, unanimously agreeing with the reasons given by Simpson J.

On the question of youth, the court noted the sentencing judge had expressly taken the applicant's age into account. The youth of an offender is a relevant mitigating factor, but the court found no error in the weight given to it here.

Regarding the guilty plea and cooperation, the court acknowledged both as genuine mitigating factors. The applicant had ultimately honoured his promise to give evidence against the principal instigator of the offence, and the Crown confirmed he had done so forthrightly. However, the court noted the significant delay between his full confession in January 2000 and his change of plea in February 2001, for which no explanation was offered. The court found the sentencing judge had properly considered these matters.

On special circumstances, the court applied the approach confirmed in R v Simpson, which holds that the full range of issues relevant to the minimum period of incarceration may be considered. The applicant argued that his likely stint in protective custody warranted a finding of special circumstances. The court accepted that the sentencing judge was aware of this possibility, but held it was open to him to treat it as not being of great relative importance, particularly given that the applicant himself had expressed a preference not to be held on protection. No error was established. The court concluded the sentence was not manifestly excessive and properly reflected all relevant circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not obliged to find special circumstances simply because an offender may serve part of a sentence in protective custody, particularly where the offender has expressed a preference against that regime.
  • A delayed change of plea, even where a full confession pre-dates it by over a year, is a relevant consideration that may limit the mitigating weight afforded to a guilty plea.
  • Under R v Simpson, the scope of considerations relevant to a finding of special circumstances is broad, but breadth of permissible considerations does not mandate particular outcomes in individual cases.
  • No error is established merely because another sentencing judge might have given greater weight to mitigating factors and imposed a lower sentence; the question is whether the sentence fell outside the range properly open to the sentencing judge.
  • Cooperation with authorities and an honoured promise to give evidence against co-offenders remain genuine mitigating factors, but they do not automatically displace the objective gravity of the offence when determining the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and the ratio of non-parole period to head sentence)

Cases:
- Neal v R (1982) 149 CLR 305
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- Cameron v R [2002] HCA 6 (14 February 2002)
- R v Simpson [2001] NSWCCA 534 (19 December 2001)