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Court of Criminal Appeal 27 March 2013

Pali v R

[2013] NSWCCA 65

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCING ROBBERY OF VICTIM OF ASSAULT APPEAL SENTENCING

Citation: Pali v R [2013] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 27 March 2013
Judges: Basten JA (with reasons); Simpson J and Blanch J (both agreeing)

Background

The appellant was convicted of breaking and entering a residential unit and committing assault occasioning actual bodily harm in circumstances of aggravation, together with robbing the victim of $125 in cash. The victim was a 69-year-old man with a physical disability and mild intellectual impairment, who had known the appellant for approximately six years. The appellant had previously assisted the victim with errands but had repeatedly sought money from him, and the victim had decided to refuse further requests.

On the morning of the offence, the appellant arrived at the victim's front door and, after being told to leave, pulled away a fly screen, climbed through the window, pushed the victim, punched him to the head, and took cash from his wallet before leaving. The victim suffered facial swelling and bruising.

The appellant was sentenced in the District Court to a non-parole period of five years (matching the standard non-parole period for the relevant offence) with an additional term of one year and eight months on the first count, and a wholly concurrent sentence on the robbery count. He sought leave to appeal against both sentences.

  • Whether the sentencing judge erred by failing to take into account the mitigating factor under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that the offences were not part of a planned or organised criminal activity.
  • Whether the sentences imposed for the break-and-enter assault and the robbery were manifestly excessive, having regard to sentences imposed for offences of a similar kind.

Decision

On the first ground, the Court of Criminal Appeal found no error. Basten JA explained that the statutory mitigating factor of an offence being unplanned does not automatically apply in every sentencing. A judge may not be satisfied on the relevant standard of proof that the offence was either planned or unplanned, or may simply find the factor carries little significance in the particular circumstances. Critically, the appellant's representative had not raised this factor in written or oral submissions before the sentencing judge, and the Court confirmed the well-established principle from Zreika v R and Romero v R that a sentencing appeal is not an occasion to reformulate arguments that were available but not advanced below.

On the question of manifest excess for the s 112(2) offence, the Court acknowledged that other cases had attracted lesser sentences, but noted that those cases generally involved guilty pleas and favourable personal circumstances. The appellant's unfavourable circumstances, including an extensive criminal record dating to 1984 (with multiple assault convictions), active drug dependency across several substances, no contrition or remorse, and a continued denial of involvement, removed any basis for leniency. The Court found the sentence, which equated to the standard non-parole period, was not outside the available range.

The robbery sentence received limited attention in submissions, as it was served concurrently. The Court accepted the statistics suggested this sentence sat towards the upper range for such offences, but noted that the comparable cases all involved guilty pleas with undisclosed discounts, providing no reliable basis for concluding the sentence was manifestly excessive.

Orders Made

  • Leave granted to appeal against each of the sentences imposed by the District Court on 10 May 2012.
  • Each appeal dismissed.

Key Takeaways

  • A sentencing judge does not err by failing to refer to the mitigating factor of an unplanned offence under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the factor was not relied upon by the offender's representative in the court below.
  • Sentencing appeals are supervisory reviews of a discretionary judgment, not rehearings of a plea in mitigation. Arguments available but not advanced before the sentencing judge will generally not be entertained on appeal.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that statistical comparisons drawn from cases involving guilty pleas carry limited weight where the appellant was convicted after trial and received no discount for a plea.
  • Unfavourable personal circumstances, including an extensive prior record, active serious drug use, absence of remorse, and continued denial, can justify a sentence at the standard non-parole period without error.
  • Where a mitigating factor is neither clearly established on the evidence nor raised by either party, a sentencing court is not obliged to treat it as a live consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(b), 44(2)

Cases
- Zreika v R [2012] NSWCCA 44
- Romero v R [2011] VSCA 45; 206 A Crim R 519
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Bolt v Regina [2012] NSWCCA 50
- Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
- R v Terkmani [2009] NSWCCA 142; 195 A Crim R 298