Citation: R v Pehar [2019] NSWDC 487
Court: District Court of New South Wales
Date: 12 August 2019
Judge: Wilson SC DCJ
Background
The offender was convicted by a jury of ten counts arising from a series of offences committed between 7 and 26 May 2014 in the Lansvale industrial complex area. The offences included six counts of larceny, two counts of taking and driving a conveyance, one count of destroying or damaging property, and one count of aggravated break, enter and steal (the aggravation being that the offence was committed in company). The offending involved the theft of CCTV cameras and equipment from multiple businesses, as well as the use of a stolen van to ram the roller door of a premises before stealing cameras and hard drives valued at over $5,000.
The offender's co-offender, Nasim Hamouda, had pleaded guilty to related charges prior to trial. The offender himself went to trial, was found guilty on all ten counts on 27 September 2018, and had his bail revoked from that date. By the time of sentencing he had been in custody for approximately ten and a half months.
At sentencing, the offender's solicitor submitted that the offender had always privately admitted his guilt and had proceeded to trial on legal advice that the Crown case was circumstantial and that he had a good prospect of acquittal. The offender supported this account in an affidavit, stating he was barely literate, had not read the brief of evidence, and was not asked by his previous lawyer whether he was guilty or not guilty.
Legal Issues
- Whether the offender was entitled to a sentencing discount reflecting his private admission of guilt, despite having pleaded not guilty and proceeding to a six-day jury trial
- The appropriate objective seriousness of each offence and the indicative sentence for each count
- How the totality principle applied to produce an aggregate sentence that was just and proportionate without being crushing
- Whether special circumstances existed to justify reducing the non-parole period below the standard ratio
- Parity with the sentence imposed on the co-offender
Decision
The court declined to give the offender any sentencing discount on the basis of his claimed private admission of guilt. His Honour reasoned that, regardless of the legal advice the offender received, he pleaded not guilty to all ten counts and put the Crown to proof over a six-day trial. The fact that he may have privately admitted guilt or was advised by counsel that the case was circumstantial did not translate into a discount that could be applied at sentence. The court noted the affidavit account was also somewhat inconsistent with the offender's statement to police in which he denied involvement entirely.
On the objective seriousness of the offending, the court assessed the ten counts individually, setting indicative sentences for each. Count 10, the aggravated break, enter and steal, carried a maximum of 20 years and a standard non-parole period of five years. His Honour assessed the objective seriousness of that offence below the mid-range, arriving at an indicative sentence of two years with an indicative non-parole period of 16 months. The departure from the five-year standard non-parole period was justified by that finding of below-mid-range objective seriousness.
On subjective matters, the court took into account the offender's personal background, including a stable upbringing with hardworking Croatian immigrant parents, an unstable work history, a history of illicit drug use, and a psychologist's report. His Honour also considered the principle of parity in light of the co-offender's earlier guilty plea and sentence.
Applying the totality principle, the court stepped back from the indicative sentences and imposed an aggregate sentence of six years, with an aggregate non-parole period of three years. The reduced non-parole period relative to the total sentence reflected a finding of special circumstances, directed toward the offender's need for an extended period of supervised parole.
Orders Made
- The offender was convicted on all ten counts on the indictment.
- Aggregate sentence of six years imprisonment, commencing 27 September 2018 and expiring 26 September 2024.
- Aggregate non-parole period of three years, commencing 27 September 2018 and expiring 26 September 2021.
Key Takeaways
- A sentencing discount for an admission of guilt is not available where the offender pleaded not guilty and contested the charges at a full jury trial, even where the offender claims to have privately admitted guilt throughout and to have acted on legal advice in going to trial.
- The District Court confirmed that the decision to plead not guilty, and thus require the Crown to prove its case over a six-day trial, is a matter that weighs against any leniency that might otherwise follow from a guilty plea.
- Where the objective seriousness of an offence carrying a standard non-parole period is assessed below the mid-range, a departure from that standard non-parole period can be justified on that basis alone.
- Under the totality principle, a sentencing court is required to stand back from individually calculated indicative sentences and impose an aggregate sentence that is just and proportionate to the overall criminality, while avoiding a sentence so heavy as to be crushing.
- Parity with a co-offender who pleaded guilty prior to trial remains a relevant consideration, even though the differing approach to the proceedings is itself a significant distinguishing factor.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112 (aggravated break and enter), 117 (larceny), 154A (take and drive conveyance), 195 (destroy or damage property)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 21A (aggravating and mitigating factors)
Cases:
- Dunn v R [2018] NSWCCA 108
- R v Fangaloka [2019] NSWCCA 173
- R v Ponfield (1999) 48 NSWLR 327
- R v Todd [1982] 2 NSWLR 517