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Court of Criminal Appeal 19 August 2019

Perticarini v Regina

[2019] NSWCCA 192

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ROBBERY ARMED WITH KNIFE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Perticarini v Regina [2019] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 19 August 2019
Judges: Bathurst CJ, Harrison J, N Adams J

Background

The appellant robbed a taxi driver at knifepoint in Rockdale in the early hours of 3 August 2017, taking $175 in cash. He had spent the preceding hours losing money at poker machines and retrieved a 10 to 15 centimetre knife from a fishing tackle box in his car before disguising himself and approaching the victim. During the robbery, he thrust the knife toward the victim and demanded the victim's car keys as well.

The appellant pleaded guilty in the Local Court to one count of robbery armed with an offensive weapon (a knife) under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. At sentencing in the District Court at Lismore, he received 4 years imprisonment with a non-parole period of 2 years and 3 months, including the full 25% discount for his guilty plea.

The appellant sought leave to appeal the severity of his sentence in the Court of Criminal Appeal, arguing the sentencing judge had handled his intellectual disability incorrectly and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find that the appellant's intellectual disability reduced his moral culpability for the offence
  • Whether the sentencing judge erred by failing to take the appellant's intellectual disability into account when assessing the relevance of general deterrence
  • Whether the sentence of 4 years imprisonment was manifestly excessive

Decision

The Court found no error in the sentencing judge's treatment of the appellant's intellectual disability. The sentencing judge had acknowledged the intellectual disability but made a finding, open on the evidence, that it did not reduce the appellant's moral culpability. The planning evident in the offence (retrieving the knife, disguising himself, and targeting an isolated victim) supported that finding. The Court declined to substitute its own view for that of the sentencing judge.

On the second ground, the Court accepted that intellectual disability can reduce the weight given to general deterrence as a sentencing purpose, since a person with such a disability may be less responsive to the threat of punishment. However, the Court found no demonstrated error in the sentencing judge's approach to this question on the evidence before her.

On the question of manifest excess, the Court examined comparable sentencing statistics and a range of earlier decisions. It observed that consistency in sentencing means consistency in applying legal principles, not numerical equivalence between cases, citing the High Court's remarks in Barbaro v R; Zirilli v R [2014] HCA 2. The Court noted the serious objective features of the offence: it occurred at night against a vulnerable and isolated victim, the appellant held the knife toward the back of the victim's head and neck, and the victim was visibly crouching in a protective posture. Those features did not support a conclusion that the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's finding that intellectual disability did not reduce moral culpability will stand on appeal where there is evidence of planning and deliberate conduct before and during the offence.
  • Where intellectual disability is raised in sentencing, the relevance to general deterrence depends on whether the disability actually affected the offender's capacity to be deterred by the prospect of punishment; the mere existence of the disability does not automatically diminish the weight of that sentencing purpose.
  • Consistency in sentencing, as confirmed in Barbaro v R; Zirilli v R, requires consistency in applying legal principles rather than numerical equivalence across cases; sentencing statistics are a yardstick, not a boundary.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that offences of armed robbery against isolated, vulnerable victims in darkness carry serious objective gravity warranting significant custodial terms.
  • No error of principle is established merely because the appellant can point to cases with lower sentences; the appellate court will not intervene unless the sentence is shown to be unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54D
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Faleafga v R [2016] NSWCCA 178
- Gardiner v R [2018] NSWCCA 27
- Kocyigit v R [2018] NSWCCA 279
- Lowndes v The Queen (1999) 195 CLR 665
- Luque v R [2017] NSWCCA 226
- Markarian v The Queen (2005) 228 CLR 357
- Moore v R [2005] NSWCCA 407
- R v Alkanaan [2017] NSWCCA 56
- R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
- R v Henry [1999] NSWCCA 111
- R v Hetherington [2016] NSWCCA 165
- R v Qutami [2001] NSWCCA 353