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Court of Criminal Appeal 11 May 2009

R v Terkmani

[2009] NSWCCA 142

Also reported as 195 A Crim R 298
Assault & violenceTheft & property
CRIMINAL LAW SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Terkmani [2009] NSWCCA 142
Court: Court of Criminal Appeal, New South Wales
Date: 11 May 2009
Judge(s): Grove J, Buddin J, Price J

Background

The respondent was convicted by jury of aggravated break, enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900, following a home invasion at Oxley Park in December 2004. During the incident, the respondent threw a brick through a window, produced a knife, forced entry into the dwelling, and assaulted the occupant with a co-offender. The victim sustained a black eye, bleeding nose, and other facial injuries. A co-offender also threatened the occupants with a syringe.

The respondent was 19 years old at the time of the offence and 23 at sentencing. He had a limited prior criminal history, was employed as a panel beater, and had the support of his family and employer. The District Court sentenced him to a total term of four years imprisonment, with a non-parole period of two years.

The Crown appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate and pointing to several discrete errors in the sentencing judge's reasoning.

  • Whether the sentencing judge applied the wrong maximum penalty (14 years rather than the correct 20 years under s 112(2))
  • Whether the judge erred in finding the offence fell below the middle range of objective seriousness, thereby departing from the standard non-parole period of five years
  • Whether the threatened use of a weapon (the syringe by the co-offender) was wrongly omitted as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999
  • Whether general deterrence was adequately reflected in the sentence
  • Whether the judge placed excessive weight on the respondent's youth and rehabilitation prospects
  • Whether, taken together, these matters rendered the sentence manifestly inadequate

Decision

The Court accepted that the sentencing judge had misstated the maximum penalty, referring to 14 years rather than the correct 20 years. However, the transcript was ambiguous, and the respondent disputed its accuracy, noting that neither counsel had raised the error at the time. Even accepting the error occurred, the Court was not persuaded it had materially affected the outcome, particularly because the judge had focused his sentencing task on whether to apply the standard non-parole period rather than on the maximum penalty itself.

On objective seriousness, the Court found the judge's characterisation of the offence as falling below the mid-range was not demonstrated to be in error. The offence involved serious criminality, but the judge was entitled to weigh the circumstances as he did, and the Crown had not established that the characterisation was wrong to such a degree as to infect the sentence.

Regarding the syringe, the Court accepted that the judge should have identified the threatened use of a weapon as an aggravating factor. The co-offender's use of the syringe to threaten the occupants was part of the offence for which the respondent was sentenced. This was the one Crown argument that succeeded. However, an isolated error of this kind does not automatically render a sentence manifestly inadequate, and the Court declined to treat it as determinative.

On the question of manifest inadequacy overall, Price J acknowledged the sentence was lenient and was probably influenced by the misstatement of the maximum penalty. Nonetheless, the Court was not persuaded the sentence of four years with a two-year non-parole period was definitively outside the appropriate range. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's misstatement of the applicable maximum penalty is a recognised error, but it will not automatically lead to appellate intervention unless the Crown demonstrates the sentence is manifestly inadequate as a result.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence may be lenient, and may even be one the appellate court would not itself have imposed, without crossing the threshold of manifest inadequacy.
  • Where a co-offender threatens victims with a weapon during the course of the offence, that threat constitutes an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, even if the weapon was produced by the co-offender rather than by the offender personally.
  • Under the principles in House v King and R v Wall, Crown appeals against sentence face a high bar. The appellate court must be satisfied the sentence is definitely outside an appropriate range, not merely that it sits at the lower end.
  • No impermissible double counting arose where the offender's youth was used both to justify departure from the standard non-parole period and, separately, as a special circumstance at the time of sentencing, consistent with the approach in R v Way.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A(2)(c)

Cases:
- House v King (1936) 55 CLR 499
- Markarian v The Queen (2005) 79 ALJR 1048
- MLP v Regina [2006] NSWCCA 271
- R v Johnson [2004] NSWCCA 140
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 166
- Regina v Joel Tory; Regina v Luke Tory [2006] NSWCCA 18
- Regina v Millar [2005] NSWCCA 202
- Regina v Price [2005] NSWCCA 285
- Regina v Shankley [2003] NSWCCA 253