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Court of Criminal Appeal 23 May 2002

Regina v Marouche

[2002] NSWCCA 202

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
SENTENCING YOUNG OFFENDER NEED TO ADJUST NON

Citation: Regina v Marouche [2002] NSWCCA 202
Court: New South Wales Court of Criminal Appeal
Date: 23 May 2002
Judge(s): Dowd J; Smart AJ

Background

The appellant was a young man who, at the time of the relevant offending, was 20 years old and already serving a sentence at Long Bay Gaol. In January 2001, he escaped custody, stole a motor vehicle, and participated in a street robbery in company at Enmore, during which a husband and wife were assaulted and the wife's handbag was taken. A firearm and ammunition were also found at a flat where he was later arrested.

The appellant pleaded guilty in the District Court to robbery in company (with additional matters taken into account on a Form 1, including possession of a firearm and ammunition), stealing a motor vehicle, and escaping from lawful custody. He received a head sentence of five years with a three-year non-parole period for the robbery, a concurrent fixed term of 12 months for stealing the motor vehicle, and a cumulative fixed term of six months for the escape.

He sought leave to appeal against the severity of the sentence, arguing in particular that the non-parole period was excessive given the accumulation of the sentences and his circumstances as a young offender with prospects for rehabilitation.

  • Whether the three-year non-parole period attached to the robbery sentence was manifestly excessive, having regard to the cumulative nature of the total sentence structure.
  • Whether the sentencing judge gave adequate weight to the appellant's youth, personal circumstances, and prospects for rehabilitation in fixing the non-parole period.

Decision

Smart AJ, with Dowd J agreeing, declined to disturb the five-year head sentence for robbery in company. The court accepted that the offences were serious and warranted a stern punishment. However, the court found that the non-parole period of three years was erroneously too long, given that a cumulative sentence for the escape offence had been added to the structure.

The court noted a number of relevant personal factors. The appellant had entered early guilty pleas, which carried both utilitarian value and reflected genuine remorse. The sentencing judge had accepted that a disturbed family background, a serious drug problem, and the death of the appellant's mother contributed to his offending. The court also observed that the appellant's isolation in custody, including estrangement from most family members, would make rehabilitation more difficult.

On the question of the non-parole period, the court reasoned that for a young offender, a longer period on parole was appropriate to support rehabilitation. Because the cumulative escape sentence extended the total period of incarceration, the non-parole period on the robbery sentence needed to be adjusted downward to avoid an unjust outcome. The court reduced the non-parole period by six months, from three years to two years and six months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • The five-year sentence for robbery in company (commencing 1 November 2002) confirmed; non-parole period varied to two years and six months, expiring 30 April 2005.
  • The commencement date of the six-month fixed term for escape from lawful custody varied to commence 1 May 2005, expiring 31 October 2005 (pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999).
  • The 12-month fixed term for stealing a motor vehicle confirmed, dating from 1 November 2002.
  • The appellant eligible for release to parole on 1 November 2005.

Key Takeaways

  • Where sentences are accumulated, the non-parole period must be calibrated to reflect the total period of actual custody, particularly for young offenders for whom a meaningful parole period is important to rehabilitation prospects.
  • A longer period on parole, rather than a longer non-parole period, was held to better serve the rehabilitative purposes of sentencing for a young offender in these circumstances.
  • Early guilty pleas retain significance not only for their utilitarian value in saving court resources, but also as evidence of remorse and contrition, both of which may reduce the sentence.
  • The Court of Criminal Appeal confirmed the head sentence while intervening only on the non-parole period, illustrating that an appellate court may vary one component of a sentence structure without disturbing the overall term.
  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999, the court varied the commencement date of the cumulative escape sentence to ensure it followed the expiry of the non-parole period, preserving the intended structure of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases cited: None