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Court of Criminal Appeal 1 March 2013

HERNANDEZ, Marcelo v R

[2013] NSWCCA 51

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK, ENTER AND STEAL MULTIPLE OFFENCES FORM 1 OFFENCES NOTIFIED EFFECT OF DURESS

Citation: Hernandez, Marcelo v R [2013] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 1 March 2013
Judge(s): McClellan CJ at CL, Rothman J, Bellew J

Background

The appellant, a South American national, pleaded guilty in the District Court to nine offences of break, enter and steal (and related offences) committed at fast-food restaurants across a six-week period in late 2009. A further 25 offences were taken into account on Form 1 notices. The offences involved disabling alarms and CCTV cameras, drilling into safes, and stealing a total of approximately $136,351 in cash.

The appellant's account was that he had accumulated substantial gambling debts of around $250,000 owed to a creditor connected with drug trafficking. After fleeing to Australia, he was told the creditor had threatened his wife. He claimed the offences were committed to raise money to pay the creditor and protect his wife.

The District Court imposed an aggregate sentence comprising a non-parole period of nine years and a head sentence of 13 years and six months. The appellant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by failing to properly account for evidence of duress and its potential mitigating effect on sentence
  • Whether the aggregate sentence was unreasonable or plainly unjust having regard to the principle of totality

Decision

On the duress ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. The sentencing judge had accepted the appellant's account about the gambling debt and the threat to his wife, and explicitly noted those circumstances. The applicable legal standard, drawn from cases including R v Olbrich, is that a sentencing court must be satisfied of disputed mitigating facts on the balance of probabilities. The court found that the sentencing judge was entitled to assess the weight of those circumstances and was not required to treat them as establishing duress in any strict legal sense.

The Court also noted that even accepting the threat to the appellant's wife, the degree of compulsion fell well short of the standard required for duress as a mitigating factor capable of substantially reducing sentence. The appellant had prior convictions in the United States for similar offences, which undermined any claim to leniency ordinarily accorded a first offender. Both specific and general deterrence remained significant sentencing considerations on the facts.

On the totality ground, Rothman J observed that the aggregate sentence was, in practical terms, less than the maximum penalty for a single offence of break, enter and steal, despite the appellant having been sentenced for nine principal offences with a further 25 taken on Form 1. The extent of accumulation and concurrency adopted by the sentencing judge was within the available range of discretion. No identifiable or manifest error was established.

The Court reaffirmed that sentencing is a process of intuitive synthesis and that appellate intervention requires either identifiable error or a manifestly excessive result. Neither was present here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's acceptance of an offender's account of threatening circumstances does not automatically translate into significant mitigation; the weight accorded to those circumstances remains a matter of sentencing discretion.
  • Where claimed duress falls short of the legal threshold, and the offender has relevant prior convictions, deterrence remains a weighty consideration even where some mitigating features are present.
  • In dismissing the totality ground, the Court of Criminal Appeal noted that an aggregate sentence covering nine principal offences and 25 Form 1 matters that remained below the maximum for a single offence was within the sentencing judge's discretion.
  • Appellate courts will not substitute their own view of the appropriate sentence merely because they might have sentenced differently; intervention requires identifiable or manifest error leading to a conclusion that a lesser sentence is warranted.
  • Sentencing is characterised as a process of intuitive synthesis, meaning there is no single mathematically correct answer, and first-instance judges are afforded significant flexibility provided they apply correct principles consistently.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 114(1), 308E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3 (Form 1 procedure)

Cases
- Chow v DPP (1992) 28 NSWLR 593
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Murray v R [2013] NSWCCA 12
- R v Falls [2004] NSWCCA 335
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13; (1989) 63 ALJR 298
- Sullivan v Department of Transport (1978) 20 ALR 323
- Vuni v R [2006] NSWCCA 171