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Court of Criminal Appeal 25 October 2022

Gavellas v R

[2022] NSWCCA 229

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE FACTUAL ERROR ESTABLISHED NO LESSER SENTENCE WARRANTED APPEAL DISMISSED.

Citation: Gavellas v R [2022] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 25 October 2022
Judges: Macfarlan JA, Button J, Wilson J (all agreeing)

Background

The appellant had pleaded guilty in the District Court at Gosford to specially aggravated break and enter and commit a serious indictable offence (assault occasioning actual bodily harm), contrary to s 112(3) of the Crimes Act 1900 (NSW). A related charge of intentionally damaging property was taken into account on a Form 1. He was sentenced to five years and three months imprisonment with a non-parole period of three years, commencing 26 November 2019.

The offence arose from a violent home invasion at night. The appellant and an unidentified co-offender smashed a bedroom window to enter the victim's unit, believing the occupant to be someone else. They were armed with a rubber mallet, which they used to destroy the victim's laptop and to strike him in the head. The victim suffered multiple abrasions, swelling to his temple, and a six-centimetre laceration requiring sutures. A third man stood outside, apparently acting as lookout. The victim's partner and a thirteen-year-old child were present throughout.

The appellant filed a notice seeking leave to appeal over thirteen months after sentencing. The Crown did not oppose the extension of time, conceding error on one ground.

  • Whether the sentencing judge erred in finding that certain statutory aggravating features under s 21 of the Crimes (Sentencing Procedure) Act 1999 (NSW) existed
  • Whether a factual error by the sentencing judge was established
  • Whether, if error was established, a lesser sentence was nonetheless warranted in all the circumstances

Decision

The Court of Criminal Appeal granted the extension of time and upheld the second ground of appeal, accepting the Crown's concession that the sentencing judge had made an error of fact. However, the nature of that error did not alter the Court's assessment of the appropriate sentence.

Wilson J (with whom Macfarlan JA and Button J agreed) conducted the re-sentencing analysis. The Court described this as an armed home invasion carried out at night by two intruders with a third acting as lookout, involving sustained violence directed at the victim's head while his partner screamed at them to stop. The fact that the offenders had entered the wrong home provided no mitigation, either objectively or subjectively.

The Court accepted that the appellant was remorseful and had family support available to him, and acknowledged his entitlement to a 25% discount for his early guilty plea. Even accepting the sentencing judge's unsupported finding that the appellant was the younger of the two intruders and therefore played a lesser role, the Court found that no lower sentence was warranted. The gravity of the offence, the need for general deterrence, and the significant harm caused to the victims and their family all pointed firmly against any reduction.

Orders Made

  • Extension of time in which to file an application for leave to appeal granted until 22 August 2022
  • Ground 2 upheld
  • Appeal dismissed

Key Takeaways

  • Upholding a ground of appeal and confirming a factual error at sentencing does not automatically result in a lesser sentence; the Court of Criminal Appeal will dismiss the appeal if it concludes no lesser sentence was warranted in law.
  • A violent home invasion committed at night, in company, with a weapon, and in the presence of a child, represents a serious objective case requiring a stern penalty with no significant reduction of general deterrence principles.
  • The Court confirmed that entering the wrong home by mistake provides no mitigation, either as an objective or subjective matter.
  • Under the re-sentencing exercise, the Court took into account remorse, family support, and a 25% early plea discount, but found these subjective factors insufficient to justify any reduction from the sentence originally imposed.
  • Where a co-offender is never identified, a finding that the appellant played the lesser role may be unsupported on the facts; the Court proceeded on that assumption in this case but still found no basis for a reduced sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 112(3), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21
- Criminal Procedure Act 1986 (NSW), s 166
- Supreme Court (Criminal Appeal) Rules 2021

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [No 1 of 2002] (2002) 56 NSWLR 146
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Johnson v R [2005] NSWCCA 186
- Lay v R [2014] NSWCCA 310
- R v Henry (1999) 46 NSWLR 346