Citation: Yildiz v R [2020] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 9 April 2020
Judges: Simpson AJA, Rothman J, N Adams J
Background
The appellant was an 18-year-old woman with no prior convictions who pleaded guilty to robbery in company arising from a joint criminal enterprise. The agreed facts established that she had no knowledge a weapon would be used, and that her co-offenders were expected only to verbally threaten the victim. She was sentenced in the District Court on 10 July 2019 to a term of imprisonment, with special circumstances found based on her youth and the fact it was her first time in custody.
She appealed that sentence to the Court of Criminal Appeal on several grounds, arguing the sentencing judge had made errors concerning her youth as a mitigating factor, her remorse, and the factual basis upon which her objective culpability was assessed.
Legal Issues
- Whether the sentencing judge erred by treating the appellant's youth as already subsumed within the Henry Guideline Judgment rather than as an independent mitigating factor
- Whether the sentencing judge erred in his assessment of the appellant's remorse by relying on a single incomplete, interrupted answer
- Whether the sentencing judge erred by inferring the appellant expected some violence, contrary to the terms of the Agreed Statement of Facts
- How parity principles applied to the sentence when compared to the sentence received by a co-offender
Decision
The Court of Criminal Appeal found three distinct errors in the sentencing judge's reasoning and quashed the original sentence.
On youth, the Court held that the sentencing judge had effectively treated youth as already embedded in the R v Henry guideline and thus declined to treat it as a separate mitigating factor. The Court confirmed that the Henry guideline's reference to "young offender" is too broad to be definitive of what weight the sentencing court must give to an individual offender's immaturity. The appellant's youth was a significant subjective consideration and the failure to engage with it meaningfully constituted a material error, being one capable of influencing the outcome.
On remorse, the Court found the sentencing judge's adverse finding was based on a single incomplete and interrupted answer in evidence, without proper regard to the fuller and more considered responses the appellant gave subsequently. Additional affidavit evidence of remorse, employment in custody, and good conduct was also placed before the Court of Criminal Appeal and taken into account on resentencing.
On the third error, the Court found it was not open to the sentencing judge to infer that the appellant had expected some degree of violence beyond that arising from the weapon, when the Agreed Facts explicitly provided that she believed the victim would only be verbally threatened. Drawing that inference from a text message and from her having kicked out once at the victim was inconsistent with the agreed factual basis of the plea. The Court then resentenced the appellant, taking into account parity with a co-offender (referred to as "ADP") and the appellant's comparatively more central role in the offence. A 25% discount was applied for the early guilty plea.
Orders Made
- Leave to appeal granted
- Appeal allowed
- The District Court sentence imposed on 10 July 2019 was quashed
- The appellant was resentenced to a non-parole period of 14 months, commencing 10 February 2019 and expiring 9 April 2020, with a remainder of 14 months concluding 9 June 2021 (total head sentence of 28 months)
- The appellant was first eligible for parole on 9 April 2020
Key Takeaways
- The R v Henry Guideline Judgment's reference to "young offender" is insufficiently precise to displace the obligation on a sentencing court to consider an individual offender's youth, immaturity, and limited capacity for mature decision-making as a distinct mitigating factor.
- A sentencing court's adverse finding on remorse may constitute error where it rests on a single incomplete, interrupted answer and fails to account for fuller evidence of contrition given in the same proceedings.
- Where an Agreed Statement of Facts explicitly limits the factual basis of a plea, a sentencing judge is not free to draw inferences inconsistent with those agreed facts when assessing an offender's subjective culpability.
- Under the parity principle, the relevant requirement is an appropriate and rational difference in sentences between co-offenders, not numerical equivalence; differences in role and culpability properly justify differences in outcome.
- An error in the sentencing process is "material" for the purpose of appellate intervention if it had the capacity to influence the sentence, not merely if it can be shown to have had an actual effect on the sentence actually imposed (following Kentwell v The Queen).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- R v Henry (1999) 46 NSWLR 346 (the armed robbery Guideline Judgment)
- Kentwell v The Queen (2014) 252 CLR 601
- Howard v R [2019] NSWCCA 109
- Newman (a pseudonym) v R [2019] NSWCCA 157
- R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
- KT v R (2008) 182 A Crim R 571
- BP v R (2010) 201 A Crim R 379
- Jimmy v The Queen (2010) 77 NSWLR 540
- Zreika v R (2012) 223 A Crim R 460
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Bugmy v The Queen (2013) 249 CLR 571
- Munda v The State of Western Australia (2013) 249 CLR 600
- Muldrock v The Queen (2011) 244 CLR 120
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 352
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- Wong v The Queen (2001) 207 CLR 584
- Legge v Regina [2007] NSWCCA 244