Citation: Josefski, Shane Stewart v R [2010] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 8 March 2010
Judge(s): James J, Howie J, Davies J
Background
The appellant pleaded guilty in the Local Court to two offences: aggravated break, enter and steal (at a residential property in Casino on 19 February 2008) and robbery in company (at a Chinese restaurant in Urunga on 3 March 2008). He was sentenced in the District Court by Ellis DCJ to a total effective term of five years and six months' imprisonment, with an overall non-parole period of three years and six months. A 40 per cent discount was applied for the utilitarian value of his guilty plea and assistance to authorities.
The break and enter offence involved the appellant and a co-offender named Laycock forcing entry to a home using a sledgehammer. The occupant's partner, Ms Wickham, was present with their 19-month-old daughter. During the offence, a voice was heard threatening to shoot Ms Wickham and her child. The robbery involved entering a closed restaurant and taking approximately $150 from the cash register.
The appellant sought leave to appeal against his sentences on three grounds: that the sentencing judge incorrectly identified aggravating factors, that there was unjustifiable disparity between his sentence and the sentence imposed on his co-offender Laycock, and that the sentences were manifestly excessive.
Legal Issues
- Whether a sentencing court may treat the consequences of an offence as aggravating factors where those consequences were not intended or reasonably foreseeable by the offender
- Whether the appellant's sentence was manifestly excessive in all the circumstances
- Whether the Court should intervene to reduce an otherwise appropriate sentence to correct a perceived disparity with the sentence imposed on a co-offender
Decision
Aggravating factors. The Court found it unnecessary to resolve the broader question of whether, as a matter of common law, a sentencing court is limited to considering only consequences that were intended or reasonably foreseeable by the offender. That question was left open because the Court was satisfied that, on the facts, both the emotional harm suffered by Ms Wickham and the presence of her child in the premises were matters that the appellant could reasonably have foreseen. There was therefore no error in the sentencing judge treating those matters as aggravating features.
The Court expressed a guarded view that the principle stated in R v Wickham (that sentencing courts may only have regard to consequences intended or reasonably foreseeable by the offender) likely still represents the common law. That position drew support from decisions in South Australia, Victoria, and Tasmania. James J noted separately that R v Boyd [1975] VR 168, which had been relied upon in subsequent cases, appeared to rest at least partly on a misreading of earlier Tasmanian authority.
Manifest excess. The Court rejected the contention that the sentences were manifestly excessive. Given the nature and circumstances of both offences, the applicant's criminal history, and the discount already applied, the sentences were within the range of a sound exercise of sentencing discretion.
Disparity. The Court found that Laycock had received a sentence that was grossly inadequate, not one that was merely more lenient. The sentencing judge dealing with Laycock had made multiple errors, including giving a 50 per cent discount for a plea entered very late and, it appeared, deciding to impose periodic detention before determining what the appropriate head sentence should be. Because Laycock's sentence was manifestly inadequate, the appellant's sense of grievance was not justifiable and the Court declined to reduce an otherwise appropriate sentence simply to address that disparity.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal left open the precise scope of the common law rule concerning unforeseen consequences in sentencing, but expressed a guarded view that a sentencing court may only aggravate sentence for consequences the offender intended or could reasonably have foreseen.
- Where the facts independently support a finding that a consequence was reasonably foreseeable, the broader doctrinal question need not be resolved, and no sentencing error arises.
- A well-established principle applies that an otherwise appropriate sentence will not be reduced merely because a co-offender received a more lenient sentence, particularly where that co-offender's sentence was manifestly inadequate rather than simply different.
- In dismissing the disparity ground, the Court reaffirmed that multiplying sentencing errors by correcting one wrong decision with another would itself undermine public confidence in the administration of justice.
- Howie J's detailed analysis of the co-offender's sentence illustrates the scrutiny applied to the reasoning underlying a departure from sentencing norms, including the timing of a guilty plea and the order in which a sentencing judge reaches conclusions about the head sentence and the mode of custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3A(g), 21A(2)(g), 21A(4)
- Sentencing Act (NT)
Cases
- R v Wickham [2004] NSWCCA 193
- Clarke v R [2009] NSWCCA 13
- R v Agius [2000] SASC 258; 115 A Crim R 387
- DPP v Arvanitidis [2008] VSCA 189
- Lambie v State of Tasmania [2007] TASSC 10
- R v Boyd [1975] VR 168
- Wise v The Queen [1965] Tas SR 196
- Inkson v R (1996) 6 Tas R 1
- Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461
- R v Berg [2004] NSWCCA 300
- R v Previtera (1997) 94 A Crim R 76
- R v Tzanis [2005] NSWCCA 274
- R v MA [2004] NSWCCA 92; 145 A Crim R 434
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Youkhana [2004] NSWCCA 412
- R v Solomon [2005] NSWCCA 158
- R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346
- R v Borkowski [2008] NSWCCA 102