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Court of Criminal Appeal 26 February 2004

R v Ronal Penalosa-Munoz

[2004] NSWCCA 33

Also reported as 143 A Crim R 594
Theft & property
CROWN APPEAL OFFENCE OF ROBBERY COMPELLING SUBJECTIVE CASE HIV SUFFERER "ELLIS DISCOUNT".

Citation: R v Ronal Penalosa-Munoz [2004] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 26 February 2004
Judge(s): Buddin J (with Levine J and Barr J agreeing)

Background

The respondent pleaded guilty in the District Court to a single count of robbery, an offence carrying a maximum penalty of 14 years imprisonment. The offence arose from an early-morning incident in Surry Hills in January 2003, in which the respondent grabbed a victim from behind at an ATM machine and took $40 in cash. The sentencing judge found that the respondent had threatened to kill the victim if he reported the matter to police.

The District Court sentenced the respondent to 18 months imprisonment, with a non-parole period of one month, dating from when he had entered custody. The practical effect was that the respondent was released on the day of sentencing, having already served the custodial portion of his sentence.

The Crown appealed under section 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate.

  • Whether the District Court sentence of 18 months with a one-month non-parole period was manifestly inadequate for a robbery offence
  • Whether the respondent's exceptional subjective circumstances, including his background as a Colombian refugee and his HIV-positive status, justified a significant departure from ordinary sentencing ranges
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to interfere with the sentence, even if error were established, having regard to the respondent's post-sentence rehabilitation and the delay in hearing the appeal

Decision

The Court acknowledged the objective seriousness of the offence. The sentencing judge had found that the victim was in an "exquisitely vulnerable position" at the ATM, facing away from the street, and that a death threat had been made. While the robbery involved no weapon and caused no lasting physical injury, it was not placed at the lowest end of the scale.

Against that, the respondent's subjective circumstances were described as compelling. He had fled Colombia after witnessing extreme political violence, including the killing of five friends and the torture and murder of his father by state actors. He had been detained and beaten by Colombian police himself. After arriving in Australia, he was granted refugee status and later citizenship, and had worked productively in the hospitality industry. The sentencing judge also accepted evidence that imprisonment poses particular hardship for HIV-positive persons, as their status cannot be kept confidential within the prison system, exposing them to discrimination and risk.

The Court applied what is known as the "Ellis discount" principle, which recognises that a plea of guilty at an early stage warrants a meaningful reduction in sentence. Combined with the respondent's exceptional background, his HIV status, and his demonstrated rehabilitation, the Court found the sentencing judge had not fallen into error.

Even if error had been established, the Court stated it would have exercised its residual discretion to decline to interfere. By the time of the appeal, more than five and a half months had elapsed since the respondent completed his custodial sentence. He was progressing well on parole and had, by all accounts, reintegrated constructively into the community. Disrupting that progress through re-incarceration, the Court found, would not serve the interests of justice.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A compelling combination of subjective factors, including a refugee background involving severe political trauma, HIV-positive status, early guilty plea, and demonstrated rehabilitation, can justify a sentence that departs significantly from the ordinary range for robbery.
  • The Court of Criminal Appeal confirmed that the particular vulnerability of HIV-positive prisoners within the prison system is a recognised sentencing consideration, supported by evidence accepted at the sentencing hearing.
  • In dismissing the Crown appeal, the Court affirmed the availability of a residual discretion to decline to interfere with a sentence even where error might otherwise be found, particularly where substantial time has elapsed since the custodial portion of the sentence was served.
  • Delay between sentencing and the hearing of a Crown appeal is a significant factor: re-incarcerating an offender long after release, especially one who is rehabilitating well, can itself be regarded as an unjust outcome.
  • Under the Ellis principle, an early guilty plea warrants meaningful recognition in the sentencing exercise, and that discount forms one part of a broader assessment of the overall appropriateness of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Henry (1999) 46 NSWLR 346
- R v Simpson (2001) 53 NSWLR 704
- R v Boundy (2002) 132 A Crim R 482
- R v Hernando [2002] NSWCCA 489
- R v Parsons and Poore [2002] NSWCCA 296
- R v Marinos [2003] NSWCCA 136
- R v Govinden (1999) 106 A Crim R 482
- R v Pang (1998) 105 A Crim R 474
- R v Perrett [1999] NSWCCA 115
- R v Smith (1987) 27 A Crim R 315