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. Manifest Excess 13 The applicant contends that when allowance is made for a discount of 25%, the notional starting point for the sentence his Honour imposed was in excess of 4 years and 8 months "given that his Honour was of the view that the applicant was entitled to further leniency on account of his remorse and contrition." (the applicant's written submissions) It is then said that the objective and subjective circumstances did not warrant an undiscounted sentence of that order. 14 The first observation I would make is that his Honour's remarks at [10] above do not bear the meaning attributed to them by the applicant. His Honour does not say "contrition justifying further leniency". It was a matter entirely within the sentencing judge's discretion whether a discount of 25% adequately reflected the early plea, the reparations made by the applicant and his expressions of remorse to a psychologist. Later in the remarks, his Honour noted that those sentiments indicating contrition were not repeated under oath and remained untested. That was a legitimate factor in the assessment of the weight to be accorded to the applicant's contrition. 15 The second observation is that the applicant's submissions inferentially challenge his Honour's finding that the offence fell within the mid-range for offences of this type. His Honour described the offence as objectively very serious, notwithstanding that it did not involve the use of or threatened use of weapons and that the applicant did not use physical violence against the victims. His Honour notes the intended and realised effects of the applicant's threats towards two persons and the sustained nature of the offence over a period of five or six days. Moreover, the use of Mr Abdallah as the "go-between" demonstrated a degree of premeditation on the applicant's part. 16 It is not contended by the applicant that his Honour made any finding that was not open to him to make, or that he failed to make a finding that was capable of materially affecting the assessment of the applicant's criminality. In those circumstances, the applicant cannot establish that the sentencing discretion has miscarried, unless his Honour's assessment of the objective gravity of this offence was so unreasonable as to demonstrate error. In my view, it was not so unreasonable. 17 The applicant's subjective circumstances were exhaustively canvassed by his Honour. The applicant was 31 years old at the time of sentence, with a 5 year old daughter from a failed marriage. He has always been in some form of employment and claimed to have abused ice and cocaine in the past, although he did not appear to have a significant drug problem. The applicant had prior convictions for offences of violence and property offences from 1995 to 1997. He had never served a custodial sentence. His Honour assessed his prospects of conviction as "no better than reasonable". 18 In short, there was nothing in the applicant's subjective case that mitigated what was otherwise a wholly appropriate determination of sentence, but for the plea of guilty. A discount of 25% applied to a head sentence falling approximately in the middle of the range, indicated by the maximum penalty, produces a result consistent with the sentence actually imposed. I would reject Ground 2 of the appeal. 19 The orders I propose are :- 1. Leave to appeal granted. 2. Appeal dismissed. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.