New South Wales Court of Criminal Appeal CITATION: REGINA v. TETERYCZ [2005] NSWCCA 197 HEARING DATE(S): Wednesday 18 May 2005 JUDGMENT DATE: 24 May 2005 JUDGMENT OF: Simpson J at 1; Buddin J at 2; Hall J at 3 DECISION: Application for leave to appeal granted; appeal is allowed in relation to grounds 1(a), (b) and (c) of the application for leave to appeal; the sentence imposed of four years and three months, dating from 28 September 2005 be set aside; That a sentence of three years and two months be substituted dating from 28 September 2005; that a non-parole period in respect of that sentence of two years be substituted; the non-parole period is to expire on 27 September 2007, the earliest date on which the applicant will be eligible for release on parole. CATCHWORDS: Criminal law - appeal against sentence - Henry guideline - no inbuilt allowance for an early plea - discount for plea of guilty - 25% discount - utilitarian value of the plea - strength of the Crown case - manifestly excessive sentence - starting point for sentence - sentence imposed on co-offender - parity. Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Carter [2001] NSWCCA 245 Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED: Henry (1999) 46 NSWLR 346 Murchie (1999) 108 A. Crim. R. 482 REGINA v. PARTIES: Ashley Scott TETERYCZ FILE NUMBER(S): CCA 2005/411 Crown: V. Lydiard COUNSEL: App: R. Burgess Crown: S. Kavanagh SOLICITORS: App: S.E. O'Connor LOWER COURT JURISDICTION: District Court 03/21/0265; LOWER COURT FILE NUMBER(S): 04/21/0061 LOWER COURT JUDICIAL OFFICER: Armitage, DCJ. IN THE COURT OF CRIMINAL APPEAL 2005/411 CCAP SIMPSON, J. BUDDIN, J. HALL, J. TUESDAY 24 MAY 2005 REGINA v. ASHLEY SCOTT TETERYCZ Judgment 1 SIMPSON, J: I agree with Hall, J. 2 BUDDIN, J: I agree with Hall, J. 3 HALL, J: On 27 July 2004, his Honour Judge Armitage sentenced the appellant on a number of offences. The applicant had been convicted by a jury of two charges of breaking and entering and stealing in circumstances of aggravation, one of malicious damage and one of larceny. 4 The applicant pleaded guilty to related charges of malicious damage and larceny and also to two unrelated charges of robbery in company and breaking, entering and stealing. Particulars of the offences charged and the sentences imposed are set out below. Summary of offences and sentences Count Offence Sentence 1 and 2 Break, enter and steal Imprisonment for three years and (11.8.02) s.112(2), Crimes Act 1900 four months commencing 28.3.04 and expiring 4.9.07 3 Larceny Imprisonment for a fixed term of (11.8.02) s.117, Crimes Act 1900 one year commencing 28.3.04 and expiring 27.3.06 4 Malicious damage to property Imprisonment for a fixed term of (11.8.02) s.195(a), Crimes Act 1900 one year commencing 28.3.05 and expiring 27.3.06 5 Malicious damage to property Imprisonment for a fixed term of (11.8.02) (Coke machine damage) six months commencing 28.3.04 s.195(a), Crimes Act 1900 6 Larceny Imprisonment for afixed term of (11.8.02) s.117, Crimes Act 1900 six months commencing 28.3.04 Indictment dated 29 April 2004 1 Robbery in company Imprisonment for four years and (4.12.03) s.97, Crimes Act 1900 three months commencing 28.9.05 and expiring 27.12.09; non-parole period of two years and six months expiring 27.3.08 Court attendance notice (11.3.03 & Break, enter and steal Imprisonment for 2.55 years 12.3.03) s.112(1), Crimes Act 1900 commencing 28.3.05 and expiring 15.10.07; non-parole period of 18 months expiring 27.9.06 5 The effective sentence is five years and nine months with a non-parole period of four years to date from 28 March 2004. The earliest date of release on parole will be 27 March 2008. 6 In sentencing, Armitage, DCJ. allowed 15% discount to all sentences for hardship due to his conditions of custody. The sentencing judge also found special circumstances. 7 The following is a summary of the circumstances of the offences:- Offences 11 August 2002 (Counts 1, 2, 3, 4, 5 and 6) 8 The six charges in question relate to events that occurred on 11 August 2002 when the accused broke and entered offices of Concrete Recyclers (Group) Pty. Limited at Camellia. The circumstances of aggravation in relation to the break and enter charges was that he was in company with other persons. 9 The total value of property stolen was approximately $34,000 and a truck, which had been loaded with equipment, was damaged. In addition, some $75,000 worth of damage was done to a loader and excavator and two Coca Cola dispensing machines were damaged and cash and soft drinks stolen. 10 On 8 April 2004, the applicant was found guilty of the charges in question. 11 The sentencing judge proceeded upon the basis that he could not find that the offender went to the premises of Concrete Recyclers in the company of two other persons with the intention of breaking, entering and stealing from the site. Break and enter on 13 March 2002 (Court attendance notice) 12 The applicant pleaded guilty to a charge of break and enter a garage in West Parade at West Ryde. The applicant smashed the rear window of a vehicle at those premises. Property stolen included a black laptop computer bag containing tools, in particular, pliers, screw drivers, data cabling equipment and computer repair equipment together with an external ZIP 100 storage drive. Compensation of $500 was sought for the stolen items and $450 for the broken window. Robbery on 4 December 2003 (Indictment, count 1) 13 The accused was charged that on 4 December 2003, at Parramatta, he robbed one Daniel Harbin of a mobile phone and one IPOD personal assistance equipment and at the time was in company with another person. He pleaded guilty to that charge. The facts occurred at 12.40 am on Thursday 4 December 2003 when the applicant and his co-offender, Steven Wayne Roberts, approached Mr. Harbin. In due course, one of the offenders placed an arm around Mr. Harbin's neck to hold him, demanding his mobile phone. The applicant said "just give it to him, I have a knife". Roberts took the phone from him. There was a scuffle and the applicant was able to obtain Mr. Harbin's IPOD equipment from his pocket. The applicant was restraining Mr. Harbin's hand when a by-passer called out and it was then that the applicant punched Mr. Harbin to the left hand side of his face causing pain and suffering. The applicant's record 14 The applicant's criminal history contained in part of Exhibit A shows that he was first convicted in 2002 and the record indicates a number of entries for four offences of dishonesty and common assault, all of which were dealt with in the Local Court. He had only one custodial sentence of six months. 15 At the time of the commission of the offence on 13 March 2002, he was on bail for malicious injury. He was also placed on a s.9 bond on 3 June 2002 at Bateman's Bay Local Court for contravening an apprehended violence order at the time of the commission of the offences on 11 August 2002. He was on bail for the offences committed on 11 August 2002 and also on a s.9 bond imposed on 11 September 2003 at Central Local Court at the time of the commission of the robbery on 4 December 2003. The applicant's subjective case 16 There was extensive reference in the reasons for sentence on the subjective factors. It is not necessary here to detail those matters at length. One of the central matters in his personal background was an earlier diagnosis of "ADHD" (Attention Deficit Hyperactivity Disorder). At the age of 13 the applicant decided not to take his medication and that appears to have been accompanied by disruptive behaviour which the sentencing judge considered was reflected by his criminal record. 17 The evidence also indicated a somewhat disrupted childhood, his father and mother having separated when he was at a very early age. The applicant left school prior to the School Certificate and worked at plumbing work for approximately 18 months and thereafter as a furniture removalist. He was living with his mother at the time of his arrest in March 2004. 18 The applicant's father had worked with Corrective Services for approximately 15 years but was required to retire because of a disability caused by an assault upon him in 2001. The sentencing judge formed the view that the applicant would probably require protection for the entirety of his sentence and that he would suffer hardship as a result. His Honour found, on the balance of probabilities, that at some stage during his sentence he would gain a place at Cooma but that that would take a considerable time. He found that medication in the form of amphetamines would not be available to the applicant in custody which would cause additional hardship. It was on that basis that he determined a discount of 15% for hardship in relation to conditions of custody. The Grounds of appeal "1. His Honour failed to properly take into account the applicant's plea of guilty in relation to the charge of robbery in company by:- (a) taking into account the strength of the Crown case when considering the utilitarian value of the plea; (b) giving a lesser discount to the applicant than the co-accused for the utilitarian value of the plea; (c) failing to give effect to the discount found by him to be appropriate. 2. The sentence in relation to the robbery in company and the total effective sentence are manifestly excessive. 3. The applicant has a justifiable sense of grievance when considering the sentence imposed on his co-offender in relation to the robbery in company, Steven Wayne Roberts." Ground 1(a) and (b) 19 The applicant appeared on 29 April 2004 unrepresented before Ellis, DCJ. and on that date entered a plea of guilty on indictment to the charge of robbery in company, pursuant to s.97(1) of the Crimes Act 1900 (an offence carrying a maximum penalty of imprisonment for 20 years). 20 The relevant passage in the reasons for sentence in relation to the strength of the Crown case is in the following terms:- "Pursuant to the principles set in R v Thompson & Houlten (sic) (2000) 49 NSWLR 383, a discount of up to 25% for a plea of guilty is appropriate. I do not think in the circumstances that the full 25% should be given in this case. The sentences I impose in respect of all of the offences to which the offender has pleaded guilty will reflect a 25% discount for a plea of guilty. On the one hand, there was a strong Crown case in respect of all of the offences to which the offender has pleaded guilty and in no case did he immediately admit his involvement to police, or assist their investigations in any way. On the other hand, there is considerable utilitarian benefit to the State in not having to conduct a trial in respect of these offences …" (emphasis added) 21 In Regina v. Carter [2001] NSWCCA 245 at [13], Howie, J., with whom Barr, J. concurred, stated:- "There is a view held by some judges that in determining the quantum of such a discount (the utilitarian benefit of a plea of guilty), a relevant consideration is the strength of the Crown case. It is not. That is a factor that is relevant to a consideration of whether the plea of guilty shows contrition and whether any discount over and above that for the utilitarian benefit of the plea should be allowed." 22 I am of the opinion that, in context, his Honour's quoted statement contravened the principle stated by Howie, J. His Honour allowed the co-offender a discount of 25%. A reading of the reasons on sentence at pp.14-15 in this matter indicates that, but for the incorrect allowance for the strength of the Crown case, his Honour probably would have allowed the applicant, like his co-offender, a 25% discount. 23 It was argued on behalf of the Crown that his Honour's allowance of a 20% discount is explicable upon the basis that, on a reading of relevant comments in the remarks on sentence, his Honour did not consider that any significant allowance should be made for the contrition expressed by the applicant (remarks on sentence, p.36). There is no express statement by the sentencing judge as to why a 20% discount for a plea of guilty was determined as a appropriate discount. In its context, I do not with respect, consider that the relevant passage on p.14 of the remarks on sentence should be construed as the Crown has submitted. 24 I accordingly consider that the appropriate discount for the applicant's plea of guilty should be 25%, being the same discount for an early plea applied in respect of the co-offender, Roberts. Ground 1(c) 25 This ground should be considered in the context of his Honour's assessment of a discount of 20% as discussed above. The submission shortly stated is that:- • if the sentencing judge allowed for a discount of 20%, then his starting point for the sentence was too high (estimated at six years and three months). • if 20% was not allowed for because his Honour understood the guideline judgment in Regina v. Henry (1999) 46 NSWLR 346 (which was held to apply to offences of robbery in company) had a discount for an early plea of guilt built into it, then that was an error and it should have been given effect. 26 Submissions made on behalf of the applicant are:- • There is no express reference by the sentencing judge to applying the 20% discount assessed by him to the sentence. That leaves open to interpretation that it may not have, in fact, been applied. • The Henry guideline of a four to five year head sentence was expressly stated to be appropriate, having regard to the judgment of Simpson, J. in Regina v. Murchie (1999) 108 A. Crim. R. 482, 485. • There was acceptance of the point that the Henry guidelines allowed for a plea of guilty. Armitage, DCJ. stated:- "The Crown also draws attention, correctly, to the fact that a plea of guilty was built into the Henry guidelines, and this fact also has been considered in determining the appropriate head sentence …" (at p.43) • However, if the sentencing judge accepted that the plea was built into the "starting point" it is said his Honour fell into error as Spigelman, CJ. in Thomson v. Houlton (supra) at [161] stated that the guidelines for the offence considered in that case "should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons" . (emphasis added) • If Armitage, DCJ. allowed the full 20% discount, it is said that this would mean the starting point was too high, namely, six years and three months. • When imposing sentence (at p.48), the sentencing judge nominated a starting point of five years imprisonment (having regard to the Henry guideline of four to five year head sentence range) prior to the 15% discount for hardship in custody, without reference to any reduction for the plea of guilty. 27 It is difficult to infer that his Honour did allow a 20% reduction before nominating the five year starting point for this would have meant a starting point of six years and three months, which would be well outside the Thomson & Houlton (supra) guideline range and have been manifestly excessive. His Honour accepted the Crown's submission that a four to five year head sentence range was appropriate. 28 The only reasonably inference, therefore, is that his Honour did not apply the 20% discount given that Henry (supra) guideline was for a late plea and there was no inbuilt allowance for an early plea. On this basis, I am of the opinion that there was no express discounting of 20% made by his Honour. 29 There is a need for caution in any event in applying Henry (supra) to the facts of this case. In Murchie (supra), Simpson, J. considered the guideline judgment promulgated by the court in Henry (supra) in relation to armed robbery offences is equally applicable to offences of robbery in company. However, in that case, the lack of a weapon was balanced by the fact that the offence was committed by four young men who behaved in a violent and very aggressive fashion, a description which also applied to the offender before the court in that case. The facts as to violence and aggression in the present case are not on the same level as in Murchie (supra), although it is significant that the applicant, when the bystander called out, punched the victim to the left hand side of his face causing pain and suffering. There was, of course, no knife involved, although the applicant called out "Just, just give it to him, I have a knife". 30 Accordingly, a second aspect of the sentence for the principal offence – the offence of robbery in company – gives rise to some concern, namely, the statement by the sentencing judge that the offence of 4 December 2003 falls at the higher end of the four to five year range, even allowing for the fact that the applicant was on conditional liberty and bail at the time of the commission of the offence. However, I do not consider this particular aspect of the assessment per se calls for the intervention of this Court. I will elaborate upon the reasons for this conclusion when I come to Ground 3. 31 If this Court is of the opinion that a lesser sentence is warranted in law, it is required to quash the sentence and pass that sentence in substitution: s.6(3) of the Criminal Appeal Act 1912. 32 I turn to consider the effect of a discount of 25% (Ground 1(a)), taking as a starting point five years. The sentencing judge determined that there should be a discount of 15% for custodial hardship. If that discount is applied to the five years starting point, it would reduce the head sentence to 4.25 years. Applying a further discount of 25% reduces the latter figure to three years and two months, dating from 28 September 2005. I would propose that a sentence of three years and two months be substituted in lieu of four years and three months imposed by the sentencing judge and that with respect thereto that a non-parole period of two years should be substituted for the non-parole period imposed by the sentencing judge of two years and six months. The non-parole period on that basis will expire on 27 September 2007. Ground 2 33 The applicant has submitted that the total effective sentence is manifestly excessive. The submission has been made that, accepting the 18 months imprisonment as a substantial period of incarceration for the other offences, the total sentence is manifestly excessive. It has been submitted that the sentencing judge did not adjust the sentence to take into account totality but chose to partly accumulate the sentences, commencing the sentence after the applicant had served 18 months in relation to the other offences. 34 I am of the opinion, subject to the adjustment of the discount for an early plea to increase it to 25% and the adjustment of the non-parole period indicated in this judgment, that the total effective sentence is not manifestly excessive. I would accordingly dismiss this ground of the application. Ground 3 35 The applicant has argued that he has a justifiable sense of grievance when considering the sentence imposed on his co-offender. The first point raised is the question of the discount of 20% for an early plea of guilty. That matter has already been dealt with in relation to Ground 1(b). The discount, as I have stated, should be 25%. 36 A further submission has been made that parity is relevant where the sentence of the co-accused could be said to be based on an erroneous finding of fact resulting in unjustified leniency. The applicant relies upon the decision in Regina v. Hodges (1997) 95 A. Crim. R. 85. 37 The sentencing judge determined the sentence of the co-offender, Roberts, on 16 December 2004. In sentencing him, his Honour identified a number of differentiating factors before concluding that a sentence of two years imprisonment to date from 16 December 2004 was appropriate. The applicant's submission to this court was, in essence, that the applicant's sense of grievance was founded upon the premise that the differentiating factors were not of such significance as to warrant the sentence imposed in this case. Specifically in this respect, reference was made to the applicant's criminal record and that of his co-offender and additionally to the specific features of the offence in question. As to the first of these two matters, I have examined the particulars of the previous convictions of the applicant which include a term of three months imprisonment for obtaining money by deception, six months imprisonment for being in a conveyance without consent, a fine of $400 for negligent driving, a conviction of disposing of stolen property (a bond for 18 months), on 15 October 2003, a conviction of entering enclosed lands (fined $400) and on 27 January 2004, a conviction in respect of common assault (fined $500). The offences of aggravated break and enter and malicious damage committed on 11 August 2003 were more serious matters, but was pointed out by the applicant's counsel, all offences on that date arose from one incident. 38 The co-offender's record on the other hand consisted of a conviction for being carried in a conveyance, taken without the consent of the owner on 24 May 2000 for which he was fined and two offences of maliciously destroying or damaging property which were the subject of the convictions on 5 August 2002, for which the co-offender was respectfully put on a s.9 bond for six months and fined. 39 The sentencing judge was, in my opinion, entitled to have regard to the more extensive and serious criminal record of the applicant to that of his co-offender. 40 As to the facts concerning the robbery in company offence committed on 4 December 2003, the facts sheet does support the proposition that the applicant's criminality was of a higher order than that of his co-offender. The differentiating factors in this respect include:- • The applicant wrapped his arm around the neck of the victim in a stranglehold, causing discomfort to his neck. • It was the applicant who said "my mate wants your phone" . • It was the applicant who also said, "just, just give it to him, I have a knife" . • Roberts pulled the phone from the victim's grip. • The applicant got hold of the victim's IPOD equipment. • The applicant punched the victim to the left hand side of his face, causing pain. 41 I am of the opinion that these factual matters are sufficient to support the conclusion that the applicant had the dominant role in the offence of 4 December 2003 including the use of violence. 42 I am, accordingly, satisfied that, having regard to the applicant's previous criminal record and his role in relation to the offence in question, he does not have a basis for any legitimate sense of grievance based on principles of parity. 43 I, accordingly, propose orders in the following terms:- 1. Application for leave to appeal is granted. 2. The appeal is allowed in relation to grounds 1(a), (b) and (c) of the application for leave to appeal. 3. The sentence imposed of four years and three months, dating from 28 September 2005 be set aside. 4. That a sentence of three years and two months be substituted dating from 28 September 2005. 5. That a non-parole period in respect of that sentence of two years be substituted for the non-parole period specified by the sentencing judge of two years and six months. 6. The non-parole so specified to expire on 27 September 2007. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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