MARCUS v REGINA [2007] NSWCCA 229

New South Wales Court of Criminal Appeal

CITATION: MARCUS v REGINA [2007] NSWCCA 229

HEARING DATE(S): 17 July 2007

JUDGMENT DATE: 2 August 2007

JUDGMENT OF: Mason P at 1; Kirby J at 2; Latham J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed

CATCHWORDS: Sentence appeal - failure to quantify discount for guilty plea - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900

Markarian v The Queen [2005] HCA 25 CASES CITED: Regina v Simpson (2001) 53 NSWLR 704 ; (2001) 126 A Crim R 525 ; [2001] NSWCCA 534 Regina v Lawrence [2005] NSWCCA 91

PARTIES: Samer Marcus - Applicant Regina - Respondent

FILE NUMBER(S): CCA 2007/931

COUNSEL: Paul A Rowe - Applicant Ms N Adams - Respondent

SOLICITORS: Glen R Walters & Co - Applicant S Kavanagh (Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3185

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2007/931

MASON P KIRBY J LATHAM J

2 AUGUST 2007 SAMER MARCUS v REGINA Judgment 1 MASON P : I agree with Latham J. 2 KIRBY J : I agree with Latham J. 3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed upon him by Sides QC DCJ on 27 October 2006, following a plea of guilty to one count of Demand Property with Menaces with Intent to Steal pursuant to s 99(1) of the Crimes Act 1900. That offence carries a maximum penalty of ten years imprisonment. 4 The applicant received a sentence of imprisonment of three years and six months, with a non parole period of two years. The sentence commenced on 28 March 2006, being the date of the applicant's arrest. 5 The facts relating to the offence were set out at length by the sentencing judge. In substance, the applicant made threats to a Mr Abdallah, on the pretence that Mr Abdallah owed the applicant $40,000. When Mr Abdallah protested, the applicant threatened that "something bad [was] going to happen to [his] house" unless Mr Abdallah assisted the applicant to procure a motor vehicle belonging to a friend of Mr Abdallah's, a Mr Silarsah. In the evening of that day, Mr Abdallah visited Mr Silarsah and took him to see the applicant, who was known to Mr Silarsah as a member of a local group engaged in extortion. The applicant was with an unknown male. 6 The applicant told Mr Silarsah to sign over his vehicle to Mr Abdallah immediately he would hurt Mr Silarsah and his family. The vehicle had been purchased by Mr Silarsah four years previously for $30,000. Mr Silarsah accepted the applicant's threats as genuine. All four men travelled back to Mr Silarsah's home, where he and Mr Abdallah left the vehicle. The applicant further threatened Mr Silarsah not to call police. Mr Silarsah signed the registration papers for his vehicle into Mr Abdallah's name. Mr Abdallah drove the vehicle away and met the applicant nearby. The vehicle and registration papers were given to the applicant, who told Mr Abdallah to meet him the next day at the RTA. 7 The applicant provided Mr Abdallah with $300 cash in order to complete the transfer of the vehicle into Mr Abdallah's name. The completed registration papers were given to the applicant. 8 A few days later, the applicant again prevailed upon Mr Abdallah to contact Mr Silarsah in order to obtain stereo equipment and a nitrous bottle that were previously fitted to the vehicle. Those items were handed over by Mr Silarsah, who continued to fear for his safety. Over the following weeks, the applicant is recorded discussing the sale of the vehicle, the nitrous bottle and other items taken from the vehicle. 9 The applicant contends that his Honour erred in not specifying the numerical value of the discount to be applied for the applicant's plea of guilty and that the sentence is manifestly excessive. I shall deal with each of these grounds in turn. Failure to Quantify the Discount for the Plea of Guilty 10 His Honour acknowledged that it was appropriate to reduce the applicant's sentence in order to reflect the plea of guilty, but specifically declined to quantify that discount, relying upon Markarian v The Queen [2005] HCA 25. His Honour went on to say :- Because he pleaded guilty in the Local Court he is entitled to the maximum leniency for the utility of his plea of guilty. In the court's view, contrition justifying leniency is indicated by the early plea of guilty, his desire to reach suitable agreement and arrangement as to compensation for the victim which was paid yesterday, and his expression of remorse to the psychologist. (ROS p 2) 11 This Court has repeatedly made statements encouraging judges to quantify discounts, whether for a plea of guilty standing alone or in combination with other factors, such as the provision of assistance. However, there is no error justifying the intervention of this Court in failing to assign a numerical value to the discount to be applied for a plea of guilty : Regina v Simpson (2001) 53 NSWLR 704 ; (2001) 126 A Crim R 525 ; [2001] NSWCCA 534. Nor is this a case where the failure to specify the discount is compounded by the absence of any indication in the remarks on sentence that the plea of guilty has been taken into account : Regina v Lawrence [2005] NSWCCA 91. 12 Counsel for the applicant submits that "maximum leniency" translates to 25% in the circumstances of this case. The Crown takes no issue with that submission and it appears to be a sensible construction of this part of his Honour's remarks. Accordingly, there is no substance to Ground 1 of the appeal. However, it is also submitted that the remarks set out at [10] necessarily entitle the applicant to a discount greater than 25%, in order to reflect the applicant's contrition over and above that inherent in his early plea of guilty. It is this aspect of the sentencing proceedings that underpins the applicant's submissions on Ground 2.