Citation: Mun v R [2015] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 28 August 2015
Judges: Gleeson JA at [1]; Adams J at [71]; Beech-Jones J at [72]
Background
The appellant, a young man aged 18 at the time of the offence, pleaded guilty in the District Court to armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW). He had waited inside a Sydney internet café for over four hours, armed with a claw hammer and gloves, before following the proprietor outside and striking him repeatedly on the head as he carried approximately $7,000 in cash. The victim sustained head wounds requiring staple sutures, jaw swelling, and multiple bruises. Text messages on the appellant's phone indicated he had been coordinating with an accomplice throughout.
The sentencing judge imposed a total sentence of 7 years imprisonment with a non-parole period of 4 years, after applying a 25% discount for the guilty plea and finding special circumstances based on the appellant's need for rehabilitation support upon release.
The appellant sought leave to appeal on two grounds: that the sentencing judge wrongly found no evidence of remorse, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in concluding there was no evidence of remorse, given statements recorded in a psychologist's report and a pre-sentence report, both of which had been tendered in proceedings
- What weight, if any, a sentencing judge may give to an offender's self-reported contrition contained in tendered reports, where the offender has not given evidence
- Whether the 7-year sentence was manifestly excessive, including by reference to the Henry guideline judgments for related offences
Decision
On the remorse ground, the Court of Criminal Appeal found no error. The sentencing judge had expressly considered both the psychologist's report and the pre-sentence report. The psychologist described the appellant as showing "considerable contrition," but critically, the appellant's own counsel at sentence had conceded before the primary judge that the tendered materials did not in fact support a finding of remorse for the armed robbery. No part of those materials was pointed to in support of the remorse submission when the judge raised his concern.
The Court confirmed that where an offender does not give evidence, statements in tendered reports are admissible but attract limited weight. The sentencing judge was entitled to distinguish between the appellant expressing relief that the victim was not more seriously injured and genuine remorse for the commission of a planned, violent armed robbery. That distinction was open on the materials and disclosed no error.
On the manifest excess ground, the Court rejected the appellant's reliance on the Henry guideline. That guideline addresses offences under s 97 of the Crimes Act (robbery with an offensive weapon, maximum 20 years), not s 98 (armed robbery with wounding, maximum 25 years with a standard non-parole period of 7 years). The Court held that it is impermissible to extrapolate proportionately from the Henry range for s 97 to arrive at a ceiling for s 98, because doing so ignores both the aggravating element of wounding and the statutory standard non-parole period.
The Court also addressed the use of a notional starting point. Even where the adequacy of the discount for a guilty plea is not in contest, a court may have regard to the notional starting point in assessing whether a final sentence is manifestly excessive. Weighing the appellant's strong subjective case, including his youth, difficult background, and good rehabilitation prospects, against the significant objective seriousness of the offending (substantial planning, brutal violence, financial gain), the Court found the sentence, while stern, was not unreasonable or plainly unjust.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Statements attributed to an offender in tendered reports (such as psychologist or pre-sentence reports) are admissible on sentence, but a sentencing judge is not obliged to accept them as establishing remorse, particularly where the offender has not given evidence and counsel conceded at first instance that the materials did not support the submission.
- A sentencing judge may legitimately distinguish between an offender expressing relief that a victim was not more severely harmed and genuine remorse for the criminal conduct itself. These are not the same finding.
- Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), genuine remorse is a mitigating factor. Its absence, however, is not an aggravating factor and cannot be treated as such.
- The Henry guideline range for robbery under s 97 of the Crimes Act cannot be transposed by simple proportion to fix a sentencing ceiling for the more serious s 98 offence, which carries both the additional element of wounding and a statutory standard non-parole period of 7 years.
- In assessing manifest excess, a notional starting point (before a guilty plea discount is applied) may be considered by the Court of Criminal Appeal even where the quantum of the plea discount is not itself challenged.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97 and s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry guideline)
- R v Henry [2007] NSWCCA 90
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- House v The King [1936] HCA 40; 55 CLR 499
- Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
- Butters v R [2010] NSWCCA 1
- Charlesworth v R [2009] NSWCCA 27
- Graham v R [2009] NSWCCA 212
- Pfitzner v R [2010] NSWCCA 314
- Papworth v R [2011] NSWCCA 253
- McGeown v R [2014] NSWCCA 314
- Halac v R [2015] NSWCCA 121
- Alpha v R [2015] NSWCCA 225