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Court of Criminal Appeal 23 April 2009

R v Les FERENC

[2009] NSWCCA 126

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL ON SENTENCE

Citation: R v Les Ferenc [2009] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 23 April 2009
Judge(s): Grove J, Howie J, RA Hulme J

Background

The respondent was charged with aggravated robbery under s 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence occurred on 29 December 2007, just eight days after the respondent had been released on parole from a sentence for robbery in company. He had lured a 19-year-old pizza delivery driver into a house in Granville, assaulted him, and demanded and obtained approximately $400 in cash.

At sentence in the District Court, Johnstone DCJ imposed a non-parole period of 18 months with a balance of term of 12 months, dating from 1 May 2008. The respondent's parole had been revoked following the offence, and he was already serving the balance of his earlier parole term.

The Crown appealed, contending the sentence was manifestly inadequate. The Crown argued the sentencing judge had wrongly categorised the offence as falling in the low range and had failed to give proper weight to the fact that the offending occurred while the respondent was on parole for similar prior offending.

  • Whether the sentencing judge erred in placing the offence in the low range of objective seriousness
  • Whether the sentence was manifestly inadequate, particularly given it ran substantially concurrently with the balance of the revoked parole period
  • Whether the Court of Criminal Appeal should intervene and resentence the respondent

Decision

The Court of Criminal Appeal found the sentence was manifestly inadequate and allowed the Crown appeal. Howie J, delivering the principal judgment (with Grove J and RA Hulme J agreeing), held that the sentencing judge had erred in assessing the objective seriousness of the offence as falling in the low range. The robbery involved deliberate planning, the use of force against a young and vulnerable victim, and the taking of a meaningful sum of cash. These features did not support a low-range characterisation.

The Court also found the sentence failed to give proper weight to the aggravating circumstance that the respondent committed the offence only eight days after being released on parole for a similar offence. While the judge had backdated the sentence to avoid double-counting the parole revocation, the Court found this approach did not adequately address the aggravated nature of the fresh offending.

Howie J acknowledged the double jeopardy inherent in a Crown appeal and the deference ordinarily owed to sentencing judges at first instance, referencing Markarian v The Queen. Nonetheless, the Court concluded the sentence was so inadequate that intervention was warranted, even accounting for an affidavit from the respondent about his conduct in custody.

In resentencing, the Court applied a discount of approximately 15 per cent to reflect the Crown appeal context and the respondent's legitimate expectation of imminent release. The Court described the resulting sentence as the minimum appropriate, noting that, in the ordinary course, a sentence of at least six years (before discount) would have been appropriate.

Orders Made

  • The appeal is allowed and the sentence imposed in the District Court is quashed
  • The respondent is sentenced to a term of imprisonment of 4 years 3 months, with a non-parole period of 3 years
  • The sentence dates from 1 May 2008
  • The respondent is eligible to be released to parole on 30 April 2011
  • The balance of term is 15 months

Key Takeaways

  • Committing an aggravated robbery eight days after release on parole for a similar offence is a significant aggravating factor that a sentencing court must give proper weight to in fixing the sentence.
  • The Court of Criminal Appeal confirmed that routing a sentence to run concurrently with a revoked parole period does not, by itself, satisfy the requirement to reflect parole status as an aggravating circumstance.
  • A Crown appeal will succeed where a sentence is so inadequate that it is unreasonable, notwithstanding the deference ordinarily owed to the sentencing judge and the double jeopardy principle: Markarian v The Queen [2005] HCA 25 applied.
  • In resentencing following a successful Crown appeal, the Court applied a downward adjustment to the sentence it would otherwise have imposed, to reflect the respondent's double jeopardy and his expectation of imminent parole.
  • Low-range objective seriousness is not established simply because the offender did not use a weapon; the planning, violence, and vulnerability of the victim are relevant factors in assessing where an offence falls within the range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Henry (1999) 46 NSWLR 346
- R v Li (NSWCCA, 9 July 1997, unreported)
- Azzi v R [2008] NSWCCA 169
- R v Tortell and Tsegay [2007] NSWCCA 313
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145