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Court of Criminal Appeal 19 August 2009

Bell v R; Jelisavac v R

[2009] NSWCCA 206

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING PARITY DIFFERENT CHARGING OF OFFENDERS MEDICAL CONDITION SPECIAL CIRCUMSTANCES NOT FOUND

Citation: Bell v R; Jelisavac v R [2009] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 19 August 2009
Judge(s): Allsop P, Price J, Harrison J

Background

Two co-offenders, Bell and Jelisavac, pleaded guilty on the first day of trial to armed robbery at a hotel and conspiracy to commit aggravated break and enter. A third co-offender, Martin, had been sentenced separately by a different judge and received a significantly lighter sentence, in part due to an early guilty plea and substantial assistance to authorities.

Bell had been in custody since December 2006. Jelisavac was sentenced in August 2008, at which point he was serving a sentence as a result of a revoked parole period for unrelated offences. Both men received a total effective sentence of 7 years imprisonment with a non-parole period of 6 years.

Both applicants sought leave to appeal against the severity of their sentences, raising various grounds including parity with Martin's sentence, the treatment of medical conditions, special circumstances, rehabilitation prospects, and the manner in which Jelisavac's sentence was structured in relation to his parole.

  • Whether the sentences imposed on Bell and Jelisavac were manifestly excessive when compared to the sentence received by co-offender Martin (the parity argument)
  • Whether Bell's medical condition warranted greater leniency in sentencing
  • Whether the sentencing judge erred in declining to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (which would have allowed a longer parole period relative to the non-parole period)
  • Whether the finding of no real prospects of rehabilitation was open on the evidence
  • Whether the sentencing judge erred in the starting point adopted for the sentences
  • Whether the structure of Jelisavac's sentence, in particular its accumulation on his existing parole period, was an error of discretion

Decision

The Court granted leave to appeal in both cases but dismissed both appeals.

On parity, the Court found that the disparity between the applicants' sentences and Martin's was fully explained by the differences in their circumstances. Martin had pleaded guilty at the earliest opportunity, received a 25 per cent discount for that, and received a further 25 per cent reduction for substantial assistance to authorities. The applicants pleaded guilty on the first day of trial and received only a 10 per cent utilitarian discount. The different charges in Martin's case also reflected the different structuring of his indictment, not any unexplained leniency.

On medical condition, the Court held that while Bell's health was a relevant factor, it did not warrant a reduction beyond what the sentencing judge had already taken into account. The Court found no error in declining to find special circumstances, noting that the standard non-parole period itself provided a significant period of supervision on release.

Regarding the finding of no real prospects of rehabilitation, the Court found this was open to the sentencing judge on the evidence, particularly given the applicants' criminal histories, the fact that leniency had been extended to them previously, and the serious nature of the current offences. As to Jelisavac's sentence structure, the Court held the judge had a discretion to accumulate the sentence partly upon the revoked parole period and had exercised that discretion without error, having considered the totality principle and concluding the outcome was not a crushing burden.

Orders Made

For both Bell and Jelisavac:
- Leave to appeal against sentence granted
- Appeal dismissed

Key Takeaways

  • A sentence disparity between co-offenders does not give rise to a valid parity ground where the difference is explicable by reference to objective factors, including the timing of guilty pleas, the extent of cooperation with authorities, and differences in the charges actually laid.
  • Where a co-offender received discounts for both early guilty plea and substantial assistance, a sentencing judge's higher sentence for offenders who pleaded guilty only on the first day of trial does not constitute an error of principle.
  • A finding of no real prospects of rehabilitation is open to a sentencing judge where an offender has a significant criminal history, has previously received leniency, and has committed serious offences while on parole.
  • Offending while subject to conditional liberty (parole) is a serious aggravating factor; the Court confirmed that it reflects poorly on an offender's attitude to the law and the sentencing process.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may dismiss an appeal even where a specific error is not established, if the sentence imposed was not otherwise unreasonable or plainly unjust given the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33B, 33B(2), 97(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44(2)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Callaghan v The Queen (2006) 160 A Crim R 145
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Formosa [2005] NSWCCA 363
- R v Gill [2002] NSWCCA 93
- R v Hammoud (2000) 118 A Crim R 66
- R v Kerr [2003] NSWCCA 234
- R v Fidow [2004] NSWCCA 172
- R v Miranda (2002) 128 A Crim R 362
- R v So [2004] NSWCCA 362
- The Queen v Hoar (1981) 148 CLR 32
- Trindall v The Queen (2006) 171 A Crim R 87