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34
Court of Criminal Appeal 5 November 2010

Georgopolous v R

[2010] NSWCCA 246

Theft & property
PROCEEDINGS AFTER CONVICTION APPEAL PLEA OF GUILTY SIGNIFICANCE OF AS EVIDENCE OF REMORSE REASONS APPLYING STANDARD NON

Citation: Georgopolous v R [2010] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 5 November 2010
Judges: Allsop P, Adams J, Howie AJ

Background

The applicant was sentenced in the District Court following a guilty plea to robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years imprisonment. The sentencing judge described the offence as involving a vicious attack and assessed its objective seriousness as slightly above mid-range. The applicant received a 20% discount for his guilty plea.

A co-offender, sentenced by the same judge on a separate occasion, received a 15% discount for his plea but was described as having shown true remorse. Despite the different discount rates, both offenders received the same sentence.

The applicant sought leave to appeal, arguing the sentence was excessive, that there was impermissible disparity with the co-offender's sentence, and that the sentencing judge had erred in his use of "mid-range" reasoning in a case where no standard non-parole period applied.

  • Whether the sentencing judge erred by using "mid-range of objective seriousness" language in the context of an offence that does not attract a standard non-parole period
  • Whether the identical sentence imposed on two co-offenders, despite different plea discounts, gave rise to impermissible sentencing disparity
  • Whether a guilty plea constitutes evidence of remorse for the purposes of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge was required, but failed, to make a formal order for the applicant's release to parole under s 50(1) of the same Act

Decision

The Court rejected the ground that the sentencing judge had committed legal error by referring to "mid-range" seriousness in the absence of a standard non-parole period. Allsop P acknowledged the terminology may have been inapt given the 20-year maximum, but accepted the judge was likely using the expression colloquially rather than in the technical sense required by Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act. The Court also noted the potential for confusion where the conceptual framework for standard non-parole periods is applied to offences that do not attract them, but declined to find error on the facts.

On parity, the Court found no valid grievance. Although the co-offender received a smaller discount for his plea, the co-offender had demonstrated genuine remorse, which the applicant had not. That difference in subjective circumstances was a sufficient and legitimate basis for distinguishing the two sentences. The Court reinforced this by observing that the sentence imposed on the applicant was, if anything, lenient rather than excessive.

The three judges offered differing but complementary analyses of guilty pleas and remorse under s 21A(3)(i). Adams J held that a guilty plea is inherently an acceptance of responsibility and an acknowledgment of consequences, thereby satisfying the statutory preconditions for remorse in a formal sense. However, whether that amounts to persuasive evidence of genuine regret depends on all the circumstances. Howie AJ took a more restrictive view, concluding that a guilty plea is primarily an admission of the elements of the offence and will rarely, standing alone, be sufficient to establish remorse as a mitigating factor, particularly where the offender has otherwise shown none.

The only error the Court identified was the sentencing judge's failure to make a formal parole release order. Because the total sentence did not exceed three years, s 50(1) of the Crimes (Sentencing Procedure) Act required the court to order the applicant's release to parole on the expiration of the non-parole period. The appeal was allowed solely to remedy this omission.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The sentence imposed in the District Court confirmed; the applicant ordered to be released to parole on 11 June 2011

Key Takeaways

  • A guilty plea satisfies the formal preconditions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 as evidence of acceptance of responsibility, but its weight as evidence of genuine remorse depends on the broader circumstances of the offender's conduct and attitude.
  • Where an offender has otherwise shown no remorse, a guilty plea alone will rarely suffice to establish the mitigating factor of remorse, beyond its utilitarian value under s 22.
  • Identical sentences imposed on co-offenders do not of themselves establish impermissible disparity; differences in subjective circumstances, particularly genuine remorse, can legitimately justify the same nominal sentence despite differing plea discounts.
  • Using "mid-range of objective seriousness" reasoning in sentencing for offences that carry no standard non-parole period risks importing a two-stage reasoning approach criticised in Markarian v The Queen [2005] HCA 25, though the Court declined to find error on the facts here.
  • Under s 50(1) of the Crimes (Sentencing Procedure) Act, where a total sentence does not exceed three years, the sentencing court is required to make a formal order releasing the offender to parole at the expiration of the non-parole period; failure to do so constitutes a correctable error.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 22, 44(2), 50(1), Pt 4 Div 1A
- Crimes Act 1900 (NSW), s 97(1)

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Sivell v R [2009] NSWCCA 286
- Wong v DPP [2005] NSWSC 129; 155 A Crim R 37