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22
Court of Criminal Appeal 2 June 2008

SILVANO v R

[2008] NSWCCA 118

Also reported as (2008) 184 A Crim R 593
Assault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCING MURDER WHETHER EXTRA CURIAL PUNISHMENT MATHEMATICAL APPROACH TO SENTENCING

Citation: Silvano v R [2008] NSWCCA 118
Court: New South Wales Court of Criminal Appeal
Date: 2 June 2008
Judge(s): James J, Hislop J, Hoeben J

Background

The appellant was convicted by jury of three offences arising from a botched robbery in inner Sydney in April 2004: assaulting a man with intent to rob him whilst armed with a dangerous weapon, murdering his then-partner during the incident when a sawn-off shotgun discharged and struck her, and maliciously shooting at the robbery victim as he fled. The murder arose on the constructive murder basis, the deceased having been killed during the commission of a serious armed offence.

At sentencing, Hulme J imposed a non-parole period of 16 years for the murder, along with sentences for the other offences. The sentencing judge expressly disclosed that he had reduced the overall sentence by three years to reflect the hardship the appellant would face serving time in protective custody.

The appellant sought leave to appeal against the sentences imposed, raising two grounds: that the three-year reduction for protective custody was insufficient, and that, when assessed mathematically against the standard non-parole period for murder, the non-parole period actually imposed disclosed an error.

  • Whether the sentencing judge's allowance of three years for the appellant's protective custody conditions constituted an error warranting intervention.
  • Whether a mathematical comparison between the standard non-parole period for murder (20 years) and the non-parole period imposed (16 years) revealed that insufficient weight had been given to mitigating factors, after accounting for the three-year reduction for protective custody.

Decision

The Court of Criminal Appeal rejected the first ground, finding no error in the sentencing judge's treatment of the protective custody question. The sentencing judge had expressly identified the reduction he was making and his reasons for doing so, and the Court found that the allowance was open on the findings made.

On the second ground, the Court firmly rejected a mathematical approach to sentencing. Citing the High Court in Markarian v The Queen, James J confirmed that sentencing is not a process capable of mathematical precision, and that it is impermissible to add and subtract fixed periods from a baseline figure to arrive at a correct sentence.

The Court also found that, even if a mathematical approach were applied, the argument would still fail. The sentencing judge had described the three-year reduction as a reduction from "the sentence" (that is, the head sentence), not from the non-parole period. A three-year reduction from the head sentence produces a smaller reduction in the non-parole period, meaning the arithmetic underpinning the appeal ground was not made out.

Additionally, the Court noted that the various mitigating factors found by the sentencing judge overlapped considerably, and that the judge's findings of objective seriousness (just below the midpoint of the range) were consistent with the non-parole period ultimately set. No error was established, and both grounds of appeal were dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing is not a mathematical exercise, and that courts may not mechanically add or subtract fixed periods from a standard non-parole period or any other baseline figure to determine the correct sentence.
  • A sentencing judge's express disclosure of a specific reduction for a particular mitigating factor (here, protective custody) does not invite or require a mathematical audit of the overall sentence on appeal.
  • Where a sentencing judge refers to reducing "the sentence" by a specified period, that language refers to the head sentence rather than the non-parole period, with the result that the flow-through discount to the non-parole period will be smaller than the nominal figure.
  • Overlapping mitigating factors (such as remorse, self-punishment, rehabilitation prospects, and low risk of reoffending) do not operate as separate, additive reductions; a sentencing court may address them collectively.
  • The fact that the person killed was a co-offender who willingly undertook the risks of the criminal enterprise was treated as a factor placing the murder just below the midpoint of objective seriousness, but this did not lead to any departure from the general sentencing framework for murder.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), ss 18, 19A, 33, 97(2)

Cases
- Markarian v The Queen (2005) 79 ALJR 1048
- Pearce v The Queen (1998) 194 CLR 610
- Alameddine v R [2006] NSWCCA 317
- Christodoulou v R [2008] NSWCCA (5 May 2008)
- R v Allpass (1993) 72 A Crim R 561
- R v Barci (1994) 76 A Crim R 103
- R v Clampitt-Wotton (2002) 37 MVR 340
- R v Daetz; R v Wilson (2003) 139 A Crim R 398
- R v Haddara (1997) 95 A Crim R 108
- R v Noble [1996] 1 Qd R 329
- R v Sharpe [2006] NSWCCA 255
- R v Webb [2004] NSWCCA 330