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Court of Criminal Appeal 13 December 2001

Regina v Perese [2001] NSWCCA 478 revised - 14

[2001] NSWCCA 478

Also reported as (2001) 126 A Crim R 508
Assault & violenceTheft & property
CRIMINAL LAW SENTENCING

Citation: Regina v Perese [2001] NSWCCA 478; (2001) 126 A Crim R 508
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2001
Judge(s): Beazley JA, Hulme J, McClellan J

Background

The applicant pleaded guilty to robbing a bank officer at Parramatta in February 1999 while in the company of others, netting approximately $99,000. A second armed robbery of a Westpac officer in June 1999 (approximately $26,500) was taken into account at sentencing under s 33(3) of the Crimes (Sentencing Procedure) Act 1999.

Judge Kirkham of the District Court sentenced the applicant to six years and six months imprisonment, with a non-parole period of four years. His Honour found special circumstances based on the applicant's youth, genuine contrition, good prospects for rehabilitation, and the need for extended post-release supervision. Both periods ran from the date of arrest.

The applicant sought leave to appeal against the sentence, raising four grounds. The Crown opposed the application.

  • Whether the sentencing judge failed to properly apply or consider the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346
  • Whether the sentencing judge gave adequate weight to the guilty plea and was required to articulate the discount allowed
  • Whether the sentencing judge was required to separately identify the component of the sentence attributable to the principal offence and to the offence taken into account
  • Whether the total sentence of six years and six months was manifestly excessive

Decision

Guilty plea discount (Ground 2): The Court rejected the argument that the sentencing judge was obliged to spell out the precise discount given for the plea of guilty. The relevant guideline from R v Thompson (decided three months after sentencing) merely "encouraged" judges to quantify the effect of a plea where they considered it appropriate. The sentencing judge acknowledged the guilty plea, and his omission to quantify the discount did not constitute an error of law.

Identifying the sentence components where offences are taken into account (Ground 3): The judges offered differing but ultimately convergent views. Hulme J declined to extend the Pearce v R principle (which requires individual sentences to be fixed for each charged offence) to offences taken into account under s 33, finding it impractical and potentially productive of unnecessary argument. McClellan J took a similar approach, concluding that while judges should endeavour to articulate the component referable to the principal offence and the component referable to offences taken into account, a failure to do so should not constitute appellable error.

Application of the Henry guideline and manifest excess (Grounds 1 and 4): The Court found no error in the sentencing judge's approach to the Henry guideline. Considering the objective seriousness of both robberies, the threat of violence, the sums involved, the commission in company, and the applicant's prior criminal history, McClellan J considered that a sentence of six years discounted by fifteen percent for the plea would have been well within range for the principal offence alone. The additional offence was independently serious. A total sentence of six years and six months was, if anything, on the low side, and no appellable error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the R v Thompson guideline, sentencing judges are encouraged but not required to quantify the effect of a guilty plea discount; a failure to do so does not, of itself, constitute an error of law.
  • The Pearce v R obligation to fix individual sentences for each offence does not automatically extend to offences taken into account under s 33(3) of the Crimes (Sentencing Procedure) Act 1999, given the distinct procedural and practical considerations that apply.
  • Sentencing judges should nonetheless endeavour to articulate the portion of the sentence attributable to the principal offence and the portion attributable to matters taken into account, though falling short of that standard will not constitute appellable error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the R v Henry guideline does not require a judge to replicate the reasoning applied to the particular offenders re-sentenced in the guideline proceedings; the primary obligation remains adherence to statute and general sentencing principles.
  • A total sentence of six years and six months for two serious armed robberies in company was assessed as within range, and arguably conservative, in light of the applicant's criminal history and the objective gravity of both offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33(3), 34(1)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- Wong v The Queen; Leung v The Queen (2001) HCA 64
- R v Thompson (2000) 49 NSWLR 383
- Pearce v R (1998) 194 CLR 610
- R v Barton [2001] 1 NSWCCA 63
- R v Morgan (1993) 70 A Crim R 368
- R v Bavadra (2000) 115 A Crim R 152
- R v Harris [2001] NSWCCA 322
- R v Lemene [2001] NSWCCA 5; 118 A Crim R 131
- R v Dawson [2000] NSWCCA 399