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Court of Criminal Appeal 16 December 2005

Diamantis v R

[2005] NSWCCA 433

Theft & propertyTraffic & driving
CRIMINAL LAW STANDARD NON PAROLE PERIOD INAPPLICABLE SENTENCE RELATED OFFENCE PERIOD OF DRIVING DISQUALIFICATION.

Citation: Diamantis v R [2005] NSWCCA 433
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2005
Judge(s): Windeyer J, Hislop J, Smart AJ

Background

The appellant pleaded guilty in the District Court to break, enter and steal in circumstances of aggravation (in company) under s 112(2) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence involved breaking into a Sydney shop in the early hours of 15 August 2003 and stealing computer equipment, with the appellant and a companion leaving the scene in a stolen van.

The District Court sentenced the appellant to a non-parole period of four years, with a balance of sentence of two years, and took into account six further offences on a Form 1 (including receiving stolen property, making false statements, and disposing of stolen property). A related offence involving dangerous driving of the stolen vehicle was also before the Court.

The appellant sought leave to appeal against the sentence on three grounds, and separately appealed a driving disqualification imposed for the related offence.

  • Whether the sentencing judge erred in applying the standard non-parole period to an offence resolved by guilty plea
  • Whether the sentencing judge gave insufficient weight to the appellant's subjective case, including his history of sexual abuse, remorse, mental health, and drug dependency
  • Whether the sentencing judge failed to properly account for a finding of special circumstances when fixing the non-parole period
  • Whether the period of driving disqualification imposed for the related dangerous driving offence was excessive

Decision

On the first ground, the Court found error. The sentencing judge had applied the standard non-parole period of five years (departing downward to four years) without the benefit of the then-recent Court of Criminal Appeal decision in R v Way, which confirmed that standard non-parole periods apply only to sentences following conviction at trial, not to guilty pleas. Both the appellant and the Crown conceded this error.

Despite identifying that error, the Court was not persuaded to intervene in the sentence. The sentencing judge's findings about the appellant's circumstances were detailed and carefully reasoned. The appellant's significant criminal history, his commission of the offence while on parole and on bail, the late timing of his guilty plea, and the limited weight properly given to expressions of remorse all supported the sentence ultimately imposed, even without reference to the standard non-parole period.

On the subjective case, the Court concluded that the sentencing judge had not failed to have regard to relevant matters. The additional factors raised on appeal, including the history of sexual abuse disclosed in reports and the attempted suicide, were addressed but found not to warrant disturbance of the sentence. The judge's treatment of remorse and rehabilitation prospects was within an appropriate range.

On the driving disqualification, the Court found no error. The driving on the night in question was extremely dangerous, involving high-speed running of red lights and a collision with a light pole. Although the appellant's driving record had not been placed before the sentencing judge, the Court found that the record, when examined, did not support any reduction in the disqualification. The period imposed was within the available range, and the appeal on the related offence was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed
  • Appeal against the related offence (driving disqualification) dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period regime does not apply to sentences imposed following a guilty plea, consistent with R v Way (2004) 60 NSWLR 168.
  • Identifying a sentencing error does not automatically lead to a different outcome: where the sentence imposed remains within an appropriate range having regard to all the facts, the appellate court will not intervene.
  • A late guilty plea, entered on the day of trial, attracts only limited utilitarian discount and does not readily support an inference of genuine remorse.
  • Where a driving record was not tendered at sentence, the appellate court may examine it on appeal; if the record does not justify a lesser penalty, the absence of that material before the sentencing judge will not ground a successful appeal.
  • In assessing a driving disqualification, the nature and dangerousness of the specific conduct giving rise to the offence is a central consideration, particularly where no imprisonment is imposed for that offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW) s 166

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Tobar [2004] NSWCCA 391
- R v Chebat [2004] NSWCCA 211
- R v P [2004] NSWCCA 218
- R v Qutami [2001] NSWCCA 353
- R v Simpson (2001) 53 NSWLR 704
- R v Tait (1979) 46 FLR 386