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Court of Criminal Appeal 25 June 2010

HAYEK, Simon v R

[2010] NSWCCA 139

Assault & violenceTheft & property
CRIMINAL LAW EXTENSION GRANTED MERITS OF APPLICATION CONSIDERED LEAVE TO APPEAL GRANTED CRIMINAL LAW SENTENCE APPEAL

Citation: HAYEK, Simon v R [2010] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 25 June 2010
Judge(s): Simpson J, Johnson J, McCallum J (McCallum J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court to aggravated robbery (with the circumstance of aggravation being the intentional infliction of actual bodily harm) and larceny. Both offences were committed against the same victim during a single incident on 21 March 2007, when the applicant and an associate assaulted a 61-year-old man inside an apartment and subsequently stole a laptop computer and briefcase from his car. The offences were committed while the applicant was on bail.

On 29 August 2008, the District Court sentenced the applicant to 18 months' imprisonment (fixed term) for the larceny, commencing on the date of arrest, and to a term of 7 years and 6 months for the aggravated robbery, with a non-parole period of 4 years and 6 months. The sentences were partially accumulated, producing a total effective sentence of 8 years' imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal against sentence. However, the notice of application was filed significantly out of time, attributed entirely to delay by his legal representatives rather than by the applicant himself.

  • Whether an extension of time to file the notice of application for leave to appeal should be granted, given the substantial delay caused by the applicant's legal representatives.
  • Whether the sentences imposed for aggravated robbery and larceny were manifestly excessive.
  • Whether the sentencing judge erred by accumulating the sentences (partially) rather than imposing them fully concurrently.
  • Whether the sentencing judge erred by failing to articulate findings regarding the applicant's rehabilitation prospects and level of contrition.

Decision

Extension of time: The Court accepted that the delay was attributable to the applicant's legal representatives rather than to the applicant personally. McCallum J rejected as disingenuous the suggestion that the complexity of the appeal had required more than six months to file. Nonetheless, the Court declined to visit the consequences of that professional failure upon the applicant and granted the extension to 11 February 2010.

Manifest excess: The Court found that the starting point adopted by the sentencing judge for the aggravated robbery was not outside the proper range of her sentencing discretion. The victim's injuries were reasonably serious, the offences were committed on bail, and the additional offence of break, enter and steal was also taken into account. The sentence for larceny was similarly held to fall within the proper range.

Accumulation: The Court confirmed that the decision whether to impose sentences concurrently or consecutively is governed by the totality principle, which asks whether the sentence for one offence can comprehend and adequately reflect the criminality of the other. The Court accepted that the larceny formed part of the same incident as the robbery but noted that the theft of the computer and briefcase from the car was capable of being viewed as contributing separately to the overall criminality. Accordingly, a six-month accumulation was within the sentencing judge's discretion and did not warrant appellate intervention.

Rehabilitation and contrition: The Court dismissed the applicant's contention that the sentencing judge had failed to make sufficient findings on rehabilitation and contrition, finding these arguments unsustainable and identifying no additional errors.

Orders Made

  • The time within which the notice of application for leave to appeal may be filed is extended to 11 February 2010.
  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where delay in filing a notice of application for leave to appeal is wholly attributable to the applicant's legal representatives, the court will give significant weight to the fact that the applicant personally should not be penalised for that failure.
  • A sentence's starting point for aggravated robbery involving serious injuries, commission while on bail, and a co-offender does not become manifestly excessive merely because the applicant considers it stern.
  • Under the totality principle, whether to accumulate sentences (and to what extent) is a matter of discretion, circumscribed by the question of whether the sentence for one offence can comprehend the criminality of the other. No fixed rule requires concurrent sentences simply because offences arose from the same incident or were committed against the same victim.
  • In dismissing the appeal, the Court confirmed that the same-incident character of two offences is a relevant factor in the accumulation analysis but is not determinative.
  • No error is established merely because a sentencing judge did not explicitly articulate findings on rehabilitation prospects or the degree of contrition shown, provided no identifiable mistake in the exercise of discretion is demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95, 112(1), 117
- Criminal Appeal Act 1912 (NSW), s 10(1)(a)
- Criminal Appeal Rules, r 3B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases:
- Dinsdale (2002) 202 CLR 321
- Markarian v Queen [2005] HCA 25; 228 CLR 357
- Pearce v R [1998] HCA 57
- R v Baker [2000] NSWCCA 85
- R v Borkowski [2009] NSWCCA 102
- R v Cahyadi (2007) 168 A Crim R 41
- R v Carter [2001] NSWCCA 245
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v MMK [2006] NSWCCA 272
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Stewart v R [2009] NSWCCA 152
- Vuni v R [2006] NSWCCA 171