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Court of Criminal Appeal 1 February 2005

Regina v Ribeiro

[2005] NSWCCA 10

Theft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE MULTIPLE OFFENCES

Citation: Regina v Ribeiro [2005] NSWCCA 10
Court: New South Wales Court of Criminal Appeal
Date: 1 February 2005
Judge(s): Grove J; James J

Background

The applicant pleaded guilty in the District Court to four counts: aggravated breaking, entering and stealing; two counts of receiving stolen property; and possessing a prohibited weapon. Two further offences (possessing housebreaking implements and a second weapon offence) were taken into account on a form 1, which is a procedure allowing a court to consider additional offences when imposing sentence without recording separate convictions for them.

The most serious offence involved a home invasion in a southern Sydney suburb. The applicant, wearing a balaclava, confronted a woman at her garage, forced her back into her home, and stole a large quantity of jewellery valued at tens of thousands of dollars. He was identified through DNA evidence recovered from under the victim's fingernails during the physical struggle.

Sentencing was conducted by Chief Judge Blanch in the District Court. His Honour imposed concurrent sentences across all counts, producing an effective sentence of five years imprisonment with a non-parole period of three years. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to take subjective matters into account when assessing the starting point of ten years imprisonment
  • Whether the combined discounts of two years for early guilty pleas and three years for assistance to authorities (under s 23 of the Crimes (Sentencing Procedure) Act 1999) were insufficient
  • Whether the ten-year starting point, and the effective sentence of five years, were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. Grove J rejected the submission that Chief Judge Blanch had improperly excluded subjective matters when reaching his ten-year starting point. Reading the sentencing remarks as a whole, it was clear the judge had considered the applicant's background, family circumstances, and psychological matters before arriving at that figure.

On the question of discounts, Grove J found that the two-year reduction for early guilty pleas fell within an appropriate range. The three-year discount for assistance to authorities under s 23 was also within the sound exercise of the sentencing judge's discretion. Those s 23 materials were placed before the Court of Criminal Appeal in a sealed envelope and reviewed by the bench and counsel.

The applicant argued that the combined discounts should have amounted to 60 per cent rather than the approximately 50 per cent applied. Relying on comments from Regina v NP [2003] NSWCCA 195, the applicant suggested that a sentence generating a "sharp intake of breath" indicated insufficient discounting. Grove J rejected that proposition, noting that such a reaction could not serve as an objective benchmark for assessing adequacy of discount.

James J agreed with Grove J's reasons and the proposed orders.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's assessment of a ten-year starting point, where the remarks on sentence read as a whole showed that subjective considerations had been taken into account before reaching that figure.
  • A combined discount of approximately 50 per cent for an early guilty plea and assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 was confirmed as within the range of sound sentencing discretion on the facts of this case.
  • In dismissing the appeal, the Court of Criminal Appeal declined to treat the observation in Regina v NP that combined discounts can cause "a sharp intake of breath" as an objective standard for testing whether discounts are adequate.
  • Under the concurrent sentence structure imposed, the Court assessed the effective sentence as a whole rather than scrutinising each individual count in strict accordance with the Pearce v The Queen (1998) 194 CLR 610 approach, noting that any technical departure from Pearce did not affect the outcome.
  • Sentencing courts retain broad discretion in weighing early pleas and s 23 assistance, and an appellate court will not intervene unless clear error is demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (assistance to authorities)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Regina v NP [2003] NSWCCA 195