Citation: Pin v R [2014] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 28 March 2014
Judge(s): Hoeben CJ at CL, Adams J, Bellew J
Background
The appellant had been sentenced in the District Court for two offences of robbery committed in company on 9 and 11 March 2012. He and two co-offenders, all of whom had known each other since their school days, carried out both robberies together. He was arrested after attempting to deal with a mobile phone stolen from the victim of the second robbery and pleaded guilty to both offences.
The sentences imposed resulted in a total effective sentence of three years with a non-parole period of 18 months. The appellant did not contend the sentence was manifestly excessive. His sole ground of appeal was that the sentencing judge had failed to account for assistance he allegedly gave to police during an interview on 11 March 2012.
Legal Issues
- Whether the sentencing judge erred by failing to address the appellant's alleged assistance to police under ss 21A(3)(m) and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether that failure, if established, warranted a reduction in the sentence
Decision
Adams J (with whom Hoeben CJ at CL and Bellew J agreed) examined what the appellant had actually told police during his interview. While the appellant did give some details about the robberies and those involved, he provided only first names for his co-offenders, deliberately withheld their surnames despite knowing them well, and lied about one co-offender's age. Adams J found these matters to be relevant because, at the time of the interview, the appellant knew all of this information having been at school with both co-offenders.
The identification of co-offender Nguyen in fact occurred independently, through a police officer recognising him from a video recording. The appellant's information therefore played no meaningful role in the arrests. Adams J characterised the assistance as trivial.
Although the Crown Prosecutor at the sentencing hearing conceded that some assistance had been given, the appellant's own counsel did not raise it as a mitigating factor. Adams J reasoned that counsel's silence suggested he was content with the concession and accepted its limited significance. The sentencing judge's failure to mention the point expressly was not an error because the assistance was, in substance, irrelevant to the sentencing exercise.
Orders Made
• Leave to appeal refused
Key Takeaways
- A sentencing court is not required to expressly address every concession made by the Crown, particularly where the matter is not raised by the defence and the underlying assistance is of negligible value.
- Under ss 21A(3)(m) and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), assistance to authorities is a recognised mitigating factor, but only where that assistance carries genuine substance. Nominal or misleading cooperation does not automatically attract a discount.
- Providing police with partial truths while simultaneously withholding known details and stating falsehoods does not constitute meaningful assistance for sentencing purposes.
- No error was established in the sentencing judge's reasoning, even though it might have been preferable for the judge to briefly address the point given the Crown's concession.
- In refusing leave to appeal, the Court of Criminal Appeal confirmed that the trivial nature of the assistance rendered it irrelevant to the sentencing outcome.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23
Cases:
No cases were cited in this decision.