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Court of Criminal Appeal 5 June 2020

Pehar v R

[2020] NSWCCA 118

Theft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE IN COMPANY FINDING OF SPECIAL CIRCUMSTANCES INDICATIVE SENTENCES

Citation: Pehar v R [2020] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 5 June 2020
Judge(s): Meagher JA, Fullerton J, Wilson J

Background

The appellant was convicted after trial of ten offences committed at an industrial complex in Lansvale, NSW across four days in May 2014. The offences included multiple counts of larceny (principally the theft of CCTV cameras), two counts of taking and driving a conveyance without consent, one count of destroying or damaging property, and one count of aggravated break, enter and commit a serious indictable offence. An aggregate sentence of six years' imprisonment, with a non-parole period of three years, was imposed by the sentencing judge on 12 August 2019.

The sentencing judge found that all ten offences were committed "in company" and treated that fact as an aggravating feature under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For count 10 (the aggravated break and enter), being committed "in company" was already an element of the offence itself, so the aggravation question centred on counts 1 through 9.

The appellant challenged the sentence on appeal, arguing that the sentencing judge erred by applying the "in company" aggravating factor across counts 1 to 9 without properly determining whether that factor was actually made out for each individual offence.

  • Whether the sentencing judge erred by finding that all of counts 1 to 9 were aggravated by the "in company" factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, without making a specific finding as to each offence
  • Whether the available evidence, properly assessed, supported a finding beyond reasonable doubt that the "in company" aggravating factor applied to each of counts 1 to 9
  • Whether any identified error warranted a lesser aggregate sentence on resentencing

Decision

The Crown conceded on appeal that the sentencing judge had erred in applying the "in company" aggravating factor to all ten offences. The available CCTV footage and agreed sentencing facts for counts 1 and 7 (both involving the theft of CCTV cameras) showed the appellant acting alone. That error had the capacity to affect the sentencing discretion, at minimum requiring adjusted indicative sentences for those two counts.

The Court then considered the remaining counts (2 to 6, 8 and 9) and assessed whether the "in company" factor was established for each. Fullerton J found it was not made out for counts 8 and 9, but was established beyond reasonable doubt for counts 2, 3, 4 and 5. CCTV footage for those counts showed the appellant and at least one other man present at the scene of each theft, and the Court was satisfied they were acting in a joint criminal enterprise. For counts 6 and 9 (taking and driving offences), the Court found the "in company" factor applied to count 6 but not count 9.

Although the aggravating factor was found to apply to several counts, Fullerton J assessed its practical weight as relatively minor. The offences were committed at night, there were no witnesses or confrontations, and there was no evidence the appellant recruited or rewarded his co-offenders. Importantly, the Court held that this error warranted a reduced aggregate sentence, and the Crown's submission that no lesser sentence was warranted (pointing to leniency shown on count 10) was rejected. The Court resentenced the appellant to an aggregate term of four years and six months, with a non-parole period of two years and three months.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence imposed by Wilson SC DCJ on 12 August 2019 quashed
  • In lieu, an aggregate sentence of 4 years and 6 months imposed, commencing 27 September 2018 and expiring 26 March 2023, with a non-parole period of 2 years and 3 months expiring 26 December 2020

Key Takeaways

  • A sentencing court must make a specific finding, beyond reasonable doubt, as to whether the "in company" aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 applies to each individual offence being sentenced; a blanket finding across multiple counts is an error.
  • Where CCTV footage and agreed sentencing facts show a defendant acting alone in committing a particular offence, the "in company" factor cannot be applied to that count.
  • The Court of Criminal Appeal confirmed that the presence of co-offenders at a scene can establish the "in company" factor even where the precise role of each participant is not fully detailed, provided the evidence supports a joint criminal enterprise beyond reasonable doubt.
  • Even where the "in company" factor is properly made out, its weight as an aggravating circumstance may be reduced if the offending occurred at night without witnesses or confrontation, and there is no evidence of inducement or reward to co-offenders.
  • An identified error in applying an aggravating factor across multiple counts can warrant a materially reduced aggregate sentence, even where the sentencing judge showed leniency on another count in the same proceeding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 117, 154A(1)(a), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 21A(2)(e)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Newman (A Pseudonym) v R [2019] NSWCCA 157
- R v Pham [2018] NSWSC 822
- White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190