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10
Court of Criminal Appeal 16 December 2011

WINDLE v R

[2011] NSWCCA 277

Theft & property
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY TO OFFENCE OF ROBBERY WHETHER SENTENCE MANIFESTLY EXCESSIVE REFUSAL TO IDENTIFY CO OFFENDERS NOT RELEVANT TO REMORSE

Citation: Windle v R [2011] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judges: Meagher JA, Hoeben J, Rothman J

Background

The appellant pleaded guilty in the Gosford Local Court to robbery under s 94 of the Crimes Act 1900. On 7 April 2010, he used inside knowledge gained during three years of prior employment to plan and facilitate the theft of $18,000 in cash from his former employer at Shelly Beach. Although the appellant drove the getaway vehicle rather than snatching the bag, the sentencing judge found he was the architect of the scheme.

The victim, aged 63 and recently hospitalised for cardiac surgery, suffered serious financial consequences. He was forced to borrow money to pay his 40 employees, moved to cheaper accommodation, and was ultimately declared bankrupt. The $18,000 was never recovered.

Judge King SC sentenced the appellant to a total term of four years, comprising a non-parole period of two years and six months. The appellant sought leave to appeal on two grounds: that the sentencing judge mishandled the assessment of remorse, and that the sentence was manifestly excessive.

  • Whether the sentencing judge properly assessed the appellant's remorse, including remorse evidenced by the guilty plea and by oral evidence given at the sentencing hearing
  • Whether the sentencing judge erred by treating the appellant's refusal to identify his co-offenders as relevant to the question of remorse and contrition
  • Whether the total sentence was manifestly excessive

Decision

On remorse and the guilty plea: The Court accepted that the sentencing judge was required to consider the appellant's guilty plea and his oral evidence as potential indicators of remorse. However, the Court found that the judge did engage with these matters and was entitled, having observed the appellant give evidence, to conclude that genuine remorse had not been demonstrated. The plea of guilty alone does not compel a finding of remorse.

On the co-offender silence issue: This ground had greater force. The Court accepted that a sentencing judge cannot treat a refusal to identify co-offenders as evidence against remorse. An accused person exercises a legitimate right in declining to name co-offenders, and drawing a negative inference about contrition from that exercise is impermissible. The sentencing judge's remarks indicated he had done exactly that.

Effect of the error on the overall sentence: Despite the identified error in the remorse analysis, the Court found the error did not materially affect the sentence actually imposed. The judge's overall findings on remorse were independently supported by the appellant's conduct before and after the offence, including his denials to police and to the victim. The error on the co-offender point did not require intervention.

On manifest excess: The Court addressed the appellant's reliance on sentencing statistics as a primary basis for this ground. Consistent with authority from the High Court in Hili v R and Muldrock v The Queen, the Court confirmed that statistical comparisons with past sentences cannot, by themselves, establish manifest excess. Past sentences are a yardstick, not a boundary. Taking all circumstances into account, including the planning, breach of trust, amount stolen, and impact on the victim, the Court was not satisfied the sentence was outside the available range or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge cannot treat an offender's refusal to identify co-offenders as a factor weighing against remorse or contrition. That refusal is the exercise of a legitimate right and carries no adverse inference on the question of contrition.
  • Where an error in the remorse analysis is identified, it will not automatically warrant a resentencing. The Court examined whether the error actually affected the sentence imposed, and found it had not, given the other independent bases for the remorse finding.
  • Statistical comparisons with sentences imposed in prior cases cannot alone establish that a sentence is manifestly excessive. The Court of Criminal Appeal confirmed, following Hili v R and Muldrock v The Queen, that past sentences are a guide and a yardstick, not fixed outer limits.
  • A guilty plea is a relevant factor in assessing remorse, but does not compel a positive finding. A sentencing judge who has observed an offender give evidence retains the discretion to conclude that genuine contrition has not been demonstrated.
  • Aggravating features, including the use of knowledge gained during prior employment to plan the robbery, were properly treated as elevating the objective seriousness of an offence that already involved significant planning and a vulnerable victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Hili v R; Jones v R [2010] HCA 45, (2010) 85 ALJR 195
- Muldrock v The Queen [2011] HCA 39
- House v The King (1936) 55 CLR 499
- Ayoub Omran v R; El Masri, Ali v R [2010] NSWCCA 196
- Alvares & Farache v R [2011] NSWCCA 33
- Fogg v R [2011] NSWCCA 1
- Furia v R [2010] NSWCCA 326
- Holloway v Regina [2011] NSWCCA 23
- Majid v R [2010] NSWCCA 121
- Pham v R [2010] NSWCCA 208
- R v F [2002] 132 A Crim R 308
- Simon Hayek v R [2010] NSWCCA 139
- Stewart, Wade John v R [2009] NSWCCA 152
- R v Sutton [2004] NSWCCA 225
- Vuni v R [2006] NSWCCA 171
- R v Winchester (1992) 38 A Crim R 345