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Court of Criminal Appeal 30 March 2012

ARBILI v R

[2012] NSWCCA 48

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE (1999) 46 NSWLR 346 LESSER SENTENCE NOT WARRANTED IN LAW

Citation: Arbili v R [2012] NSWCCA 48
Court: Court of Criminal Appeal, NSW
Date: 30 March 2012
Judges: Basten JA; RS Hulme J; Schmidt J

Background

The applicant pleaded guilty in the District Court to assault with intent to rob while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence arose from an incident at a tobacconist shop in Liverpool in October 2009, in which the applicant entered the store, produced a folding knife, and demanded money and goods from the victim. The maximum penalty for the offence was 20 years imprisonment.

The sentencing judge imposed a total term of 5 years, with a non-parole period of 2 years and 6 months. That sentence was made entirely concurrent with a 10-month sentence the applicant was serving from separate Local Court proceedings. The sentencing judge noted that the applicant claimed to have no memory of the offence and entered his plea on legal advice, in circumstances where the Crown case was strong.

At the time of sentencing, and shortly after the offence, the applicant was diagnosed with paranoid schizophrenia and psychogenic amnesia. His criminal history included prior convictions for assault and a 2009 sentence for demanding property in company.

  • Whether the sentencing judge erred in the manner in which the applicant's mental illness was taken into account
  • Whether the sentencing judge erred in finding a notable degree of planning
  • Whether the sentencing judge misapplied the guideline judgment in R v Henry [1999] NSWCCA 111
  • Whether the sentence was manifestly excessive
  • Whether the sentencing judge erred in failing to apply a 25% discount for the utilitarian value of the early guilty plea

Decision

Mental illness: The Court accepted that a diagnosis of mental illness shortly after an offence raises a legitimate concern that the illness may have been present at the time of offending and may have influenced the conduct. The Court noted the uncertainty surrounding the applicant's state at the time, including the possibility of psychiatric illness, drug use, or neurological factors. However, the Court found that the deficit in evidence could not be remedied at the appellate stage and rejected the ground relating to mental illness.

Planning and the Henry guideline: The Court rejected the grounds relating to the finding of planning and the application of R v Henry. Schmidt J, in the majority reasons, found that Henry supported a sentencing range of four to five years for comparable offending, and that the sentencing judge's approach to that guideline did not disclose error. Basten JA offered a nuanced reading, suggesting that the Henry range itself incorporated some allowance for a guilty plea in a strong Crown case, and that any error lay in the failure to allow a greater discount beyond what that range already reflected.

Guilty plea discount: The majority found that the sentencing judge erred by applying only a 20% discount rather than the 25% discount appropriate to an early guilty plea. However, Schmidt J and Hulme J concluded that despite this error, a lesser sentence was not warranted in law. The sentence was made entirely concurrent with the earlier Local Court sentence, and taking into account all relevant factors including the gravity of the offence, aggravating and mitigating circumstances, and the proper application of the totality principle, Schmidt J characterised the sentence as lenient overall. Accordingly, the majority dismissed the appeal.

Basten JA (dissenting on outcome): Basten JA agreed that error had been established in the plea discount, and did not accept that the element of concurrency with the Local Court sentence was sufficient to characterise the sentence as lenient in all respects. His Honour would have granted leave and reduced the balance of the additional term by four months. The majority did not adopt this course.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Establishing sentencing error is not sufficient on its own to obtain a reduced sentence: under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must also be satisfied that a lesser sentence is warranted in law.
  • Where a sentencing judge makes an offending sentence entirely concurrent with an earlier, shorter sentence, that concurrency may be treated as a form of leniency that offsets an identified error in the discount applied for a guilty plea.
  • A diagnosis of mental illness made shortly after an offence can raise a legitimate concern that the illness was present at the time of offending, but the onus remains on an applicant to establish this mitigating factor on the balance of probabilities; evidential gaps cannot be remedied on appeal.
  • The R v Henry guideline range for armed robbery offences incorporates certain baseline factors, including the existence of a guilty plea where the Crown case is strong; the extent to which a further discount is required above that baseline depends on the specific circumstances of the plea.
  • In dismissing the appeal, the Court confirmed that a 25% discount ordinarily applies to early guilty pleas but that a global sentencing approach, when properly disclosed by the sentencing judge, does not necessarily constitute error merely because the arithmetic is not performed explicitly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Wilmot v Regina [2007] NSWCCA 278
- R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Hawkins v R [2011] NSWCCA 153
- Lewis v R [2011] NSWCCA 206
- Legge v R [2007] NSWCCA 244
- Mercael v R [2010] NSWCCA 36
- R v Jarrold [2010] NSWCCA 69
- R v Wilson [2005] NSWCCA 219