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Court of Criminal Appeal 24 May 2005

REGINA v. TETERYCZ

[2005] NSWCCA 197

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE HENRY GUIDELINE NO INBUILT ALLOWANCE FOR AN EARLY PLEA DISCOUNT FOR PLEA OF GUILTY 25% DISCOUNT

Citation: [2005] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 24 May 2005
Judges: Simpson J, Buddin J, Hall J

Background

The appellant was sentenced in the District Court in July 2004 following a combination of jury convictions and guilty pleas across multiple offences. The offences included two aggravated break, enter and steal charges, malicious damage, larceny, and a robbery in company. The most serious matter, a robbery in company committed in December 2003, involved the appellant restraining a victim in a stranglehold, threatening the use of a knife, and punching the victim in the face.

The sentencing judge, Armitage DCJ, imposed a total effective sentence of five years and nine months with a non-parole period of four years. The judge applied a 15% discount across all sentences to reflect hardship arising from the appellant's conditions of custody, and made a finding of special circumstances.

The appellant sought leave to appeal against the sentence imposed for the robbery in company charge, arguing that the sentencing judge had failed to properly account for the guilty plea and that the resulting sentence was manifestly excessive. The appellant also raised a parity ground, contending the sentence was disproportionate to that imposed on his co-offender.

  • Whether the sentencing judge failed to separately and adequately apply a discount for the utilitarian value of the appellant's early guilty plea to the robbery in company charge, distinct from any hardship discount already applied
  • Whether the sentencing judge erred in his approach to the Henry guideline by treating it as building in an allowance for an early plea when it does not do so
  • Whether the sentence for the robbery in company charge was manifestly excessive, having regard to the appropriate starting point
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a justifiable sense of grievance

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach to the guilty plea discount. The judge had treated the Henry guideline (which provides a sentencing range for robbery in company) as if it already incorporated an allowance for an early plea. This was wrong in principle: the Henry guideline contains no such inbuilt allowance, and a separate discount for the utilitarian value of a guilty plea was required in addition to any adjustment for hardship in custody.

The Court held that, properly approached, a discount of 25% was warranted for the early guilty plea. That discount applied to a starting point of three years and six months, which the Court considered appropriate on the facts. After applying the discount, a sentence of two years and seven and a half months was indicated as the headline figure, though the Court arrived at a substituted sentence of three years and two months for the robbery count, with a non-parole period of two years.

On the parity ground, the Court rejected the appellant's argument. Although his co-offender had received a shorter sentence, the Court found that the appellant played the dominant role in the robbery: he applied the stranglehold, made the threat of a knife, took the victim's IPOD, and punched the victim. His criminal history was also more extensive and serious than his co-offender's. The Court was satisfied those differences justified the disparity and that the appellant had no legitimate sense of grievance.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on grounds 1(a), 1(b), and 1(c)
  • The original sentence of four years and three months for the robbery in company charge (commencing 28 September 2005) was set aside
  • A sentence of three years and two months substituted, commencing 28 September 2005
  • A non-parole period of two years substituted, expiring 27 September 2007

Key Takeaways

  • The Henry guideline for robbery in company does not contain any inbuilt allowance for an early guilty plea; a sentencing court must apply a separate discount for the utilitarian value of such a plea, over and above any other adjustments already made.
  • A 25% discount for an early guilty plea was appropriate in this case, applied to a starting point of three years and six months for the robbery in company offence.
  • Where a co-offender receives a lesser sentence, parity principles do not automatically entitle an appellant to a reduction; the Court will examine whether the disparity is explained by differences in role, culpability, and criminal history.
  • Sufficient factual basis existed here to conclude the appellant had the dominant role in the robbery, distinguishing his position from that of his co-offender and displacing the parity argument.
  • Hardship arising from conditions of custody and a discount for guilty plea are separate sentencing considerations; conflating them, or assuming one is subsumed within the other, constitutes error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 112, 117, 195(a)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346 (the guideline judgment for robbery in company)
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guilty plea discounts)
- R v Carter [2001] NSWCCA 245
- R v Murchie (1999) 108 A Crim R 482