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7
Court of Criminal Appeal 24 November 2005

R v Misiepo

[2005] NSWCCA 405

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CROWN APPEAL PLEA OF GUILTY USE OF FIREARM TWO OFFENDERS IN CAR VICTIM SHOT JOINT CRIMINAL ENTERPRISE

Citation: R v Misiepo [2005] NSWCCA 405
Court: New South Wales Court of Criminal Appeal
Date: 24 November 2005
Judge(s): Simpson J, Adams J, Hoeben J

Background

The respondent pleaded guilty to armed robbery with wounding under s98 of the Crimes Act 1900, arising from an incident at Mortdale on 3 February 2003. He and a companion entered a vehicle driven by the victim, who had been lured to the location under the pretence of a drug transaction. One of the two men in the car produced a firearm, shot the victim through the arm and into his chest, and robbed him of property.

The Crown contended that the respondent was the person who fired the shot. The sentencing judge was not satisfied of that beyond reasonable doubt, and the Crown did not challenge that finding on appeal. The case against the respondent therefore proceeded on the basis of a joint criminal enterprise.

The District Court sentenced the respondent to a non-parole period of three years and a balance of term of one year and nine months. The Crown appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate and that several errors infected the sentencing process.

  • Whether the sentencing judge erred in declining to find that the respondent knew a firearm was present, given that the co-offender had pleaded guilty to robbery in company
  • Whether a plea of guilty to a joint criminal enterprise offence necessarily implies knowledge of the presence of a firearm
  • Whether the sentencing judge's finding that the plea was entered at the earliest possible opportunity was open on the facts
  • Whether the sentencing judge's failure to articulate reasons for departing from the standard non-parole period constituted error
  • Whether the sentence fell within the Henry guideline for armed robbery, and if so, whether that was appropriate given the circumstances
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal

Decision

Simpson J (with whom Adams J and Hoeben J agreed) identified a number of concerns with the sentencing process. The sentencing judge had declined to find that the respondent knew a firearm was present, but the circumstances of the plea and the joint criminal enterprise raised questions about whether that finding was fully open. The standard non-parole period for a mid-range s98 offence is seven years, and while the sentencing judge departed downward from that figure, the reasons for doing so were not adequately articulated.

The Henry guideline (R v Henry [1999] NSWCCA 111) contemplates a head sentence of four to five years for armed robbery in the mid-range. The sentence imposed fell within that range. However, the Court noted that the objective circumstances of this offence, including that the victim was shot, arguably placed it outside the typical Henry profile and pointed toward a more severe sentence. The absence of reasoning explaining why the guideline was applied without upward adjustment added to the Court's unease about the process.

Notwithstanding those errors, the Court turned to its residual discretion to decline to intervene in Crown appeals even where error is established. By the time of the appeal, the respondent had served the substantial portion of his sentence. He had engaged seriously with education in custody, was described by custodial staff as cooperative and respectful, and had repeatedly sought drug and alcohol programmes. His principal motivation appeared to be the welfare of his two children.

Weighing all of those circumstances, the Court found it appropriate to exercise its discretion against re-sentencing. The Crown appeal was dismissed.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that even where sentencing error is established, the court retains a residual discretion to dismiss a Crown appeal, and that discretion may properly be exercised where post-sentence rehabilitation is genuine and substantial.
  • A sentencing judge who departs from the standard non-parole period must articulate reasons for doing so; the absence of such reasons can constitute a ground of error, even if it does not necessarily compel intervention.
  • Under the Henry guideline for armed robbery, a court is expected to depart from the standard range where objective circumstances, such as a victim being shot, push the offence beyond the typical profile contemplated by the guideline.
  • Where two offenders are present in a vehicle and uncertainty exists as to which fired a weapon, a sentencing court may decline to find that the other had knowledge of the firearm, but that finding requires careful engagement with the nature and scope of the joint criminal enterprise to which the offender pleaded guilty.
  • In dismissing the Crown appeal, the Court gave weight to evidence of rehabilitation presented at the appellate stage, confirming that such material is relevant both to any re-sentencing exercise and to the exercise of the court's discretion to decline to interfere.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 1A; ss 44, 54B

Cases
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wall [2002] NSWCCA 42
- R v Way [2004] NSWCCA 131; 60 NSWLR 168