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Court of Criminal Appeal 2 September 2010

Paese v R

[2010] NSWCCA 178

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY BREAK, ENTER AND STEAL USE OF STATISTICS NO ERROR SHOWN.

Citation: Paese v R [2010] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 2 September 2010
Judge(s): McClellan CJ at CL, James J, Davies J

Background

The appellant pleaded guilty in the District Court to break, enter and commit a serious indictable offence (larceny) under s 112(1) of the Crimes Act 1900, carrying a maximum of 14 years imprisonment. The offence involved a violent home invasion at a Newport dwelling, during which two residents were physically restrained and threatened, and $300 cash and a small quantity of cannabis were stolen. The appellant and a co-offender were caught shortly after, with the stolen cash falling from the appellant's clothing during a police search.

Originally, all three men involved had been charged with an aggravated version of the offence. Following applications for separate trials, the Crown accepted guilty pleas from the appellant and his co-offender to the non-aggravated form, in full discharge of the indictment. The third participant, who had driven the group and was charged as an accessory after the fact, was dealt with under s 10 of the Crimes Act and placed on a good behaviour bond.

The sentencing judge (Marien DCJ) imposed a non-parole period of 3 years and 10 months with an additional term of 1 year and 9 months. The appellant appealed on the ground that this sentence was manifestly excessive.

  • Whether the sentence was manifestly excessive, having regard to sentencing statistics for the offence
  • Whether the statistics demonstrated that the sentence effectively placed the appellant in the range appropriate for the aggravated form of the offence rather than the offence to which he had pleaded guilty

Decision

On the statistics argument, Davies J (with whom McClellan CJ at CL and James J agreed) found no error. The sentencing statistics did not account for whether aggravating circumstances were present, the extent of offenders' prior records, or whether offenders had been on conditional liberty. These limitations meant that a bare comparison between the sentence imposed and the statistical range did not establish that the judge had incorrectly situated the offence at the upper end of objective seriousness, nor that any error had occurred.

On the aggravated offence comparison, the appellant argued that, once the guilty plea discount and special circumstances finding were factored back in, his sentence was consistent with what would have been imposed for a middle-range aggravated offence. Davies J rejected this as the kind of reasoning the High Court corrected in Markarian v R (2005) 228 CLR 35. The proper approach requires a sentencing judge to work from the maximum penalty for the actual offence charged, not by reference to the penalty for a related but different offence higher or lower on the scale.

Davies J also noted that it was impermissible to reason backwards from the numerical result of an otherwise appropriate sentence to conclude that it must fit the aggravated form, and then to infer error from that comparison. The sentencing judge had properly identified the correct maximum penalty and referred to the aggravated offence only in the context of matters he had expressly excluded from consideration.

No error on the part of the sentencing judge was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court must begin its analysis from the maximum penalty for the offence actually charged, not from the penalty structure of a related but more serious form of the same offence, consistent with the High Court's guidance in Markarian v R.
  • Reasoning backwards from a sentence's numerical result to argue it better fits a different, more serious offence does not establish sentencing error.
  • Sentencing statistics have inherent limitations: they typically do not record the presence of aggravating circumstances, offenders' prior criminal histories, or whether offenders were on conditional liberty, all of which can significantly affect the appropriate sentencing range.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the Crown's acceptance of a plea to a lesser charge in full discharge of an indictment shapes the sentencing exercise, but does not automatically limit the sentence to a range divorced from the actual seriousness of the conduct.
  • No error was established merely because a co-offender charged with the same offence received a longer sentence, given the availability of different subjective circumstances for each offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and commit serious indictable offence)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Markarian v R (2005) 228 CLR 35
- R v Way (2004) 60 NSWLR 168
- Graham v R [2009] NSWCCA 212
- R v Harris [2007] NSWCCA 130
- In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield [1999] NSWCCA 435