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Court of Criminal Appeal 16 March 2022

Ristevski v R

[2022] NSWCCA 38

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE LARCENY

Citation: Ristevski v R [2022] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 16 March 2022
Judges: Johnson J, Harrison J, Fagan J

Background

The appellant was a repeat offender who pleaded guilty in the District Court to three counts of larceny and three counts of dishonestly obtaining property by deception. The offences involved stealing handbags, wallets, and credit cards from women shopping at supermarkets in the Illawarra region in mid-2019, followed by the immediate fraudulent use of the stolen cards in transactions kept deliberately below $100 to avoid PIN or signature requirements. A further 18 charges were taken into account on a Form 1 (a procedural mechanism allowing additional charges to be considered at sentencing without separate conviction).

The sentencing judge in the District Court imposed an aggregate sentence of four years imprisonment with a non-parole period of three years. The appellant, then aged 46, had been offending in a similar manner for more than 20 years.

On appeal, the appellant challenged the sentence on three grounds, focusing primarily on how the sentencing judge had approached the 25 percent discount for the early guilty plea and whether remorse had been separately and properly considered.

  • Whether the sentencing judge erred by treating the appellant's remorse and contrition as part of the justification for the 25 percent guilty plea discount, rather than as a separate, unquantified factor in the instinctive synthesis of sentence
  • Whether the sentencing judge misunderstood the approach taken in an earlier set of proceedings involving the same offender, and whether that misunderstanding infected the exercise of sentencing discretion
  • Whether the sentencing judge erred by failing to address a submission that special circumstances existed, which would have justified a longer parole period relative to the head sentence

Decision

On the first ground, all three judges agreed that error was established. The sentencing judge's remarks explicitly bundled remorse and contrition together with the utilitarian value of the guilty plea as reasons for the 25 percent discount. Under established principle confirmed in R v Borkowski, remorse must not form any component of the guilty plea discount. Instead, it must be weighed separately and in an unquantified way as part of the overall instinctive synthesis required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. Because the sentencing judge did not refer to remorse anywhere else in his sentencing remarks, the Court of Criminal Appeal could not characterise the wording as merely infelicitous language: remorse had simply not been considered in the manner the law requires.

On the second ground, Fagan J (with the others agreeing) rejected the argument. The earlier sentencing judge's approach had been correctly understood, and the commencement date chosen for the sentence was open on the facts. No error was established in that respect.

On the third ground, the Court found that the sentencing judge had implicitly addressed special circumstances by structuring the non-parole period as he did. The failure to use the precise terminology in the sentencing remarks did not constitute error, and this ground was rejected.

Despite finding error on the first ground, the Court declined to impose a lesser sentence under s 6(3) of the Criminal Appeal Act 1912. The Court pointed to the appellant's extensive history of incorrigible recidivism in precisely this type of offending, his poor prospects of rehabilitation, repeated failures to engage with drug treatment, and the need to protect the community. The offences, though individually modest in financial terms, caused real disruption and a sense of vulnerability to each victim. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the sentencing framework established in R v Borkowski and confirmed here, remorse must not be included as a component of the guilty plea discount. It must be weighed separately and without quantification as part of the instinctive synthesis of sentence.
  • Where a sentencing judge mentions remorse only within the context of justifying the guilty plea discount, and makes no separate reference to it elsewhere in the sentencing remarks, an appellate court is unlikely to treat that as mere poor word choice: the error is real.
  • Establishing a ground of appeal does not automatically result in a lesser sentence. The Court of Criminal Appeal will still consider whether a different outcome is warranted under s 6(3) of the Criminal Appeal Act 1912, and community protection and recidivism are relevant to that assessment.
  • In dismissing the appeal despite finding error, the Court emphasised that the severity of an offender's pattern of conduct over many years can independently justify the sentence originally imposed.
  • The effect of petty financial offences on individual victims, including distress and a lasting sense of vulnerability, is a legitimate sentencing consideration even where the amounts involved are small by comparison with other criminal matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117, 192E(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D

Cases:
- R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102
- Devaney v R [2012] NSWCCA 285
- Hezaji v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
- Jackson v R [2010] NSWCCA
- Morton v R [2014] NSWCCA 8
- Sevastopoulos v R [2011] NSWCCA 201