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Court of Criminal Appeal 10 July 2020

Zeiser v R

[2020] NSWCCA 154

Assault & violenceTheft & property
CRIME APPEALS SENTENCE APPEAL SEVERAL COUNTS OF ROBBERY IN COMPANY ERROR IN CALCULATION ESTABLISHED APPEAL GRANTED

Citation: Zeiser v R [2020] NSWCCA 154
Court: Court of Criminal Appeal, NSW
Date: 10 July 2020
Judge(s): Payne JA; Fagan J; Cavanagh J

Background

The appellant was convicted after trial on three counts of robbery in company arising from incidents on 1 August 2017, in which he and a co-offender posed as police officers and robbed motorists of personal property. Shortly before a separate trial for a fourth robbery on 31 July 2017, both the appellant and his co-offender pleaded guilty to that charge. The Crown accepted that a discount of up to 15% was appropriate for that late guilty plea.

Acting District Court Judge Latham sentenced the appellant to concurrent terms of 5 years imprisonment for each of the August robberies, with a 3 years and 9 months non-parole period, and to 3 years imprisonment for the July robbery, commencing two years later. The co-offender received shorter sentences that reflected both an early guilty plea discount (25%) for the August matters and the same 15% discount for the July matter.

The appellant sought leave to appeal, arguing that the sentencing judge had failed to apply the agreed 15% discount to the July robbery sentence and had also failed to consider the effect of accumulated non-parole periods when assessing whether special circumstances existed.

  • Whether the sentencing judge erred by failing to apply a 15% guilty plea discount to the sentence for the 31 July 2017 robbery in company
  • Whether the sentencing judge erred by failing to consider the consequences of accumulated sentences when determining whether special circumstances existed to justify departing from the statutory non-parole period ratio

Decision

On the first ground, the Court found the error was clear. The sentencing judge had plainly intended to treat the appellant and his co-offender equally for the July robbery. The co-offender received a head sentence of 2 years and 6 months, reflecting a starting point of 3 years reduced by 15%. The appellant received the full 3 years with no reduction, and the remarks on sentence gave no reason for that difference. The Court characterised this as an inadvertent oversight, not a deliberate sentencing choice.

On the second ground, the Court rejected the appellant's argument. Once the 15% correction was applied, the resulting overall non-parole period ratio of approximately 76.6% closely reflected the statutory default. There was no residual need to find special circumstances to achieve a proportionate outcome, so no error arose from the judge's failure to address accumulation on that basis.

The Court then considered whether the discrete error required a full resentencing exercise under the principles in Kentwell v The Queen and Lehn v R, or whether it could be corrected in isolation. Relying on the exception identified in both those decisions, the Court concluded that the oversight had not fed into or distorted the broader exercise of sentencing discretion. Both counsel agreed that a discrete adjustment was appropriate. The correction brought forward the appellant's parole eligibility date by two months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in respect of the sentence for the single count of robbery in company on 31 July 2017; that sentence quashed
  • In substitution, the appellant sentenced to imprisonment for 2 years and 6 months, commencing 2 August 2019 and expiring 1 February 2022, with a non-parole period of 1 year and 10 months expiring 1 June 2021

Key Takeaways

  • An inadvertent failure to apply an agreed guilty plea discount is a correctable error, even without a full resentencing, where the oversight did not carry over into the broader exercise of sentencing discretion
  • The Court of Criminal Appeal confirmed the exception, articulated in Lehn v R and Kentwell v The Queen, under which a discrete arithmetical or calculation error may be corrected in isolation rather than triggering a full resentencing exercise
  • Where co-offenders are sentenced on explicitly equal terms subject to identified differences, a divergence in outcome that is unexplained in the remarks on sentence can reveal an inadvertent error rather than a deliberate sentencing choice
  • Rejection of a special circumstances argument can follow logically from correction of a prior error: once the discount was applied, the resulting ratio made a special circumstances finding unnecessary
  • Both parties' acceptance that a discrete adjustment was appropriate was a relevant factor in the Court's decision to confine its intervention to the specific error

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases:
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Carroll v R [2015] NSWCCA 219
- Haines v R [2016] NSWCCA 90
- Martin v R [2016] NSWCCA 104