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Court of Criminal Appeal 18 February 2010

Nanai v R

[2010] NSWCCA 21

Assault & violenceTheft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES ROBBERY CIRCUMSTANCES OF AGGRAVATION INFLICT ACTUAL BODILY HARM

Citation: Nanai v R [2010] NSWCCA 21
Court: New South Wales Court of Criminal Appeal
Date: 18 February 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The applicant pleaded guilty in the District Court to robbery in circumstances of aggravation, specifically that actual bodily harm was inflicted during the offence. The offence occurred in a residential street in Darlinghurst in the early hours of a Sunday morning. In an intoxicated state, the applicant and a co-offender attacked a 22-year-old man who was walking alone and speaking on his mobile phone, causing head injuries before stealing the phone.

Solomon DCJ sentenced the applicant to six years' imprisonment with a non-parole period of four and a half years. The sentence also took into account a further offence of assaulting a police officer by spitting at him during a strip search at the police station following arrest.

The applicant, who had a significant prior criminal history including aggravated robbery and sexual assault, sought leave to appeal on the grounds that the sentencing judge failed to properly apply the statutory guilty plea discount, that the sentence was manifestly excessive, and that there was a disparity between his sentence and that received by his co-offender.

  • Whether the sentencing judge failed to take into account the requirements of section 22 of the Crimes (Sentencing Procedure) Act 1999 when applying a reduction for the guilty plea
  • Whether the sentence was manifestly excessive given the objective circumstances of the offence
  • Whether the disparity between the applicant's sentence and his co-offender's sentence raised a valid parity ground

Decision

The Court found that the sentencing judge failed to properly address section 22 of the Crimes (Sentencing Procedure) Act 1999. That provision requires a court to consider whether to reduce a sentence because of a guilty plea, and where the discretion is exercised to decline or limit such a reduction, an explanation is required. Because the sentencing judge's remarks did not adequately address this, the Court found error on the first ground.

On manifest excess, the Court accepted that the objective circumstances of the offence placed it in the mid-range of seriousness and that a starting point of six years with a non-parole period of four and a half years was appropriate before any plea discount. However, the failure to apply a proper reduction for the guilty plea rendered the resulting sentence manifestly excessive.

On the parity ground, the Court rejected the applicant's argument. While the difference in sentences between the applicant and his co-offender was significant, the Court found that this disparity was proportionate to the genuine differences in culpability and personal circumstances. The applicant had led the co-offender into the offence, and his criminal history was substantially more serious. The Court held that in these circumstances the parity principles were effectively displaced.

Applying a reduction of approximately 25 percent to the starting point to reflect the guilty plea, the Court re-sentenced the applicant. The Court noted additional evidence that the applicant had been moved between prisons in a way that prevented him accessing rehabilitation programmes, but did not treat this as a basis for any further reduction.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and original sentence quashed
  • Applicant re-sentenced to imprisonment for 4 years and 6 months, comprising a non-parole period of 3 years and 4 months commencing 11 May 2008 and expiring 10 September 2011, with a balance of term of 14 months expiring 10 November 2012

Key Takeaways

  • Under section 22 of the Crimes (Sentencing Procedure) Act 1999, where a sentencing court declines to allow a reduction for a guilty plea, or limits that reduction, an explanation for the exercise of that discretion is required.
  • A failure to address the statutory guilty plea discount can constitute error sufficient to warrant appellate intervention, even where the starting point for the sentence is otherwise unimpeachable.
  • The Court of Criminal Appeal confirmed that parity principles do not automatically apply simply because co-offenders receive markedly different sentences; where differences in culpability and personal circumstances are sufficiently pronounced, a substantial disparity in sentences may be entirely justified.
  • Unavailability of rehabilitation programmes in custody, even where an offender is now motivated to participate, does not of itself warrant a further reduction in sentence.
  • A guilty plea in a mid-range aggravated robbery case attracted a discount of approximately 25 percent on the head sentence, consistent with the approach established in R v Thomson; R v Houlton.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(3), 22, 44(2), and Pt 4 Div 1A
- Crimes Act 1900 (NSW), s 95

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- McKibben v R [2007] NSWCCA 89
- R v Cameron [2005] NSWCCA 357
- R v Sutton [2004] NSWCCA 225
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465