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Court of Criminal Appeal 6 December 2005

Iese v Regina

[2005] NSWCCA 418

Theft & property

Citation: Iese v Regina [2005] NSWCCA 418
Court: NSW Court of Criminal Appeal
Date: 6 December 2005
Judge(s): Grove J, Studdert J, Whealy J

Background

The applicant pleaded guilty on the first day of trial in the Sydney District Court to one count of robbery and one count of attempted aggravated robbery. A further count of aggravated robbery with corporal violence was taken into account on a Form 1 document at sentencing.

The offences arose from an incident in the early hours of 25 April 2002 at Berala Station, where the applicant and at least two others robbed a young man of his mobile phone, attempted to extract cash from an ATM using the victim's credit cards, and threatened to stab him, though no weapon was carried. The Form 1 offence occurred in October 2002 while the applicant was on bail and involved punching a victim during a separate robbery.

The applicant was eighteen years old at the time of the principal offences, had no prior convictions, and presented evidence of a mild intellectual disability, genuine remorse, stable employment, and a supportive family environment. The sentencing judge imposed a non-parole period of fifteen months with a total term of two years and six months for the robbery count, and a concurrent fixed term of nine months for the attempted aggravated robbery. The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the fact that the robbery was committed in company as an aggravating factor, contrary to the principle in R v De Simoni, which prohibits sentencing courts from aggravating a sentence on the basis of conduct that would have warranted conviction for a more serious offence.
  • Whether the sentencing judge gave insufficient weight to the delay between the commission of the offences and sentencing.
  • Whether insufficient weight was given to the applicant's mild intellectual disability as a mitigating factor.
  • Whether, even if error was established, the Court of Criminal Appeal should intervene to impose a lesser sentence.

Decision

On the first ground, Whealy J found that the sentencing judge did err. The judge's remarks on sentence expressly identified that the robbery was committed while in company as an aggravating factor. That was impermissible: the applicant had been charged with robbery under s 94 of the Crimes Act 1900, and treating the company element as aggravating amounted to penalising him for conduct constituting the more serious offence of robbery in company under s 97(1). This was a clear breach of the principle established in R v De Simoni (1981) 147 CLR 383.

On the delay ground, the Court acknowledged that significant delay between offending and sentencing is a recognised mitigating factor. However, it found that the sentencing judge had adequately acknowledged this matter, and the applicant's own conduct, including the Form 1 offence committed while on bail, was relevant context in assessing how much weight the delay warranted.

On the intellectual disability ground, the Court accepted the judge's approach. While the evidence confirmed a mild intellectual disability, the Court found this did not substantially bear on culpability in the circumstances, nor did it diminish the need for general deterrence. The judge had taken the disability into account, and was entitled to conclude it did not require any reduction in the weight given to deterrence.

Despite finding error on the first ground, the Court declined to intervene. Whealy J noted that the sentences imposed were relatively lenient: the applicant received a 20% discount for his plea, a finding of special circumstances, and a generous non-parole period. On the Court's assessment, a lesser sentence would not adequately reflect the objective seriousness of the offending or the need for general deterrence in respect of offences of this kind.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court commits a De Simoni error when it treats as an aggravating factor conduct that would have supported conviction for a more serious offence, such as treating the "in company" element as aggravating a charge of simple robbery under s 94, when that element is the defining feature of the more serious offence of robbery in company under s 97(1).
  • Establishing sentencing error does not automatically result in resentencing. The Court of Criminal Appeal will decline to intervene where, viewed in totality, the sentence imposed was not manifestly excessive and a lesser sentence would not adequately reflect the objective gravity of the offending.
  • Delay between the commission of offences and sentencing is a recognised mitigating factor, but its weight can be affected by intervening conduct, including further offending while on bail.
  • Evidence of mild intellectual disability is a relevant sentencing consideration, though courts retain a discretion about how much weight to assign it, particularly where it does not substantially diminish culpability or negate the need for general deterrence.
  • In dismissing the appeal, the Court confirmed that pleas of guilty, findings of special circumstances, and favourable subjective circumstances (remorse, employment, family support) can together produce a sentence that withstands appellate challenge even where a discrete error of principle is identified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 95(1), 97(1), 344A

Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Todd (1982) 2 NSWLR 517
- R v Blanco (1999) 106 A Crim R 303
- R v Smith (1987) 44 SASR 587
- R v Bailey (1988) 35 A Crim R 458
- R v McDonald (1988) 38 A Crim R 470
- R v Miketic [NSWCCA 425]