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5
Court of Criminal Appeal 5 August 2020

Weiss v R

[2020] NSWCCA 188

Theft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE EXTRAORDINARY SET OF EVENTS SETTING PARENTS’ CARS ON FIRE APPLICANT ACTED ON DIRECTION OF CO

Citation: Weiss v R [2020] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 5 August 2020
Judge(s): Macfarlan JA, N Adams J, Lonergan J (N Adams J delivering the principal judgment, with Macfarlan JA and Lonergan J agreeing)

Background

The applicant was convicted on two counts of aiding and abetting the intentional damage of property by fire, contrary to s 195(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years. Both offences occurred in February 2016 and targeted property belonging to the parents of a man whose new relationship had caused considerable resentment among his former partner and her new partner (the applicant).

The factual background was, as the sentencing judge noted, extraordinary. The applicant's then-partner and another co-offender had each previously been in relationships with the two victims, who were now a couple. The co-offenders arranged a series of arson attacks targeting property connected with those victims, apparently to flush out their whereabouts. The applicant's role was to arrange others to set the fires and, on at least one occasion, to drive those individuals to the scene.

At first instance, the District Court at Penrith imposed an aggregate sentence of 4 years and 3 months imprisonment with a non-parole period of 3 years. The applicant sought leave to appeal, contending that the sentencing judge had erred in several respects, including in the application of discounts for his guilty pleas and assistance to authorities.

  • Whether the sentencing judge erred by applying the discount for the guilty plea and assistance to the aggregate sentence rather than to each indicative sentence before arriving at the aggregate.
  • Whether the sentencing judge erred in assessing the objective seriousness of both counts.
  • Whether the resulting aggregate sentence was manifestly excessive.
  • Whether the applicant had a justifiable sense of grievance arising from a marked disparity between his indicative sentences and those indicated for a co-offender on corresponding counts.

Decision

The Court of Criminal Appeal found error in the way the discount for the guilty plea and assistance to authorities had been applied. The sentencing judge applied the combined 30% discount to the aggregate sentence rather than to each indicative sentence individually, which the Court held was the incorrect approach under the applicable sentencing framework.

On objective seriousness, the Court found no error in the sentencing judge's overall assessment of the applicant's criminality. However, having identified the procedural error on the discount question, the Court re-sentenced the applicant. N Adams J concluded the offending sat just above the mid-point of the mid-range of objective seriousness for this class of offence, a characterisation marginally different from the sentencing judge's but not amounting to a discrete ground of error on its own.

On the disparity ground, the Court accepted that the applicant had a justifiable sense of grievance when his indicative sentences were compared with those of his co-offender on the corresponding counts. The Court considered that a greater degree of disparity between the two sets of indicative sentences was warranted, given the differences in the parties' relative culpability.

Taken together, these findings led the Court to quash the original sentence and re-sentence the applicant to a lower aggregate term. The non-parole period was set at 70% of the head sentence, consistent with the sentencing judge's finding that special circumstances existed, and the combined 30% discount for the early guilty plea and assistance to authorities was preserved and applied correctly to the indicative sentences.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed in the District Court on 18 April 2019 quashed.
  • In lieu thereof, an aggregate sentence of 3 years imprisonment imposed, commencing 18 April 2019 and expiring 17 April 2022, with a non-parole period of 2 years and 1 month expiring 17 May 2021.
  • Indicative sentences: Count 1, 2 years and 2 months; Count 2, 2 years and 6 months.

Key Takeaways

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the correct approach when sentencing to an aggregate term is to apply discounts for a guilty plea and assistance to each indicative sentence, not to the aggregate sentence after the fact.
  • A justifiable sense of grievance arising from sentencing disparity between co-offenders can constitute a valid ground of appeal, particularly where differences in culpability are apparent from the agreed facts.
  • The Court of Criminal Appeal confirmed that, even where no discrete error is established in the assessment of objective seriousness, identified errors in the sentencing process can warrant re-sentencing on a different factual characterisation of that seriousness.
  • In re-sentencing, the Court allowed for greater accumulation of indicative sentences than the original judge had adopted, while preserving the 70% non-parole period ratio and the combined 30% discount for early plea and assistance.
  • The applicant's role as an organiser and driver, rather than the person physically setting the fires, was a relevant factor in differentiating his culpability from that of the principal co-offender.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 23, 53A

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Kliendienst v R [2020] NSWCCA 98
- Fenech v R [2018] NSWCCA 160
- Berryman v R [2017] NSWCCA 297
- Cameron v R [2017] NSWCCA 229
- Afu v R [2017] NSWCCA 246
- Elsaj v R [2017] NSWCCA 124
- Miles v R [2017] NSWCCA 266
- PG v R [2017] NSWCCA 179
- Clarke v The Queen [2013] NSWCCA 260
- Lam v R [2015] NSWCCA 87
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Porter v R [2008] NSWCCA 145
- Mulato v Regina [2006] NSWCCA 282