Georgopolous v R - [2010] NSWCCA 246

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Georgopolous v R [2010] NSWCCA 246

FILE NUMBER(S):
2009/129227

HEARING DATE(S):
26 October 2010

JUDGMENT DATE:
5 November 2010

PARTIES:
Steven Georgopolous - Applicant
Regina - Crown

JUDGMENT OF:
Allsop ACJ Adams J Howie AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Conlon DCJ

LOWER COURT DATE OF DECISION:
11 December 2009

COUNSEL:
Ms L Rowan - Appellant
Ms V Lydiard - Respondent/Crown

SOLICITORS:
A Kernaghan - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
Proceedings after conviction – Appeal – Application for leave to appeal against sentence – Plea of guilty – significance of as evidence of remorse – Reasons – applying standard non-parole reasoning in case where no standard non-parole period – Disparity – whether disparity where same sentence imposed after different discounts for plea – Remorse – relevance of plea of guilty to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, ss 21A(3)(i), 22, 44(2), 50(1), Pt 4 Div 1A
Crimes Act 1900 (NSW), s 97(1)

CATEGORY:
Principal judgment

CASES CITED:
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575
R v MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Way (2004) NSWCCA 131; 60 NSWLR 168
Sivell v R [2009] NSWCCA 286
Wong v DPP [2005] NSWSC 129; 155 A Crim R 37

TEXTS CITED:

DECISION:
1. Leave to appeal is granted,
2. The appeal is allowed in part,
3. The sentence imposed in the District Court is confirmed and the Court orders that the applicant be released to parole on 11 June 2011.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2009/129227
ALLSOP P
ADAMS J
HOWIE AJ
Friday 5 November 2010

STEVEN GEORGOPOLOUS V REGINA

Judgment

ALLSOP P:I have had the advantage of reading in draft the reasons for judgment of Howie AJ. I agree with the orders proposed by his Honour that dismiss the substantive arguments of the applicant, but which attend to the question of parole overlooked by the learned sentencing Judge. I also agree in substance with the reasoning of Howie AJ, subject to a short expression of my own views as follows.
Initially the only ground of appeal was that his Honour had erred in treating the objective seriousness of the offence as falling “slightly above the mid-range for [an] offence of this type.”
Ms L Rowan, of counsel, who appeared for the applicant, frankly recognised the difficulty with this ground standing alone. Although not required by the presence of a standard non-parole period, the learned sentencing Judge appears to have been using this expression to evaluate and characterise the seriousness of the offence. The expression in the context of the charge, robbery in company, contrary to the Crimes Act 1900 (NSW), s 97(1), may, in the circumstances, with respect, have been inapt, given the maximum sentence for the offence (20 years). His Honour may well have been intending to refer more colloquially, and less technically, to “offences of this type” (ROS p 5). As Howie AJ points out, the use of the concept of “the mid-range of objective seriousness of the offence” called for by the Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A in sentencing for an offence not calling for a standard non-parole period could well lead to expressions of reasons that might be seen to reflect a “two stage” approach criticised in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373-375 [35]-[39]. Without intending the slightest disrespect to the High Court or Parliament, it might be thought, however, that the potential for complexity involved with the intersection of these two aspects of the law of sentencing at this level of abstraction is unfortunate.
In any event, I am not prepared to conclude that the learned primary Judge committed any legal error by the terminology that he chose to use.
To the extent that the identification of this asserted error was a preamble to an assertion that the sentence was unjustifiably severe, I would reject that argument. The facts revealed a vicious attack, which luckily (for both the victim and the applicant) did not lead to the infliction of lasting serious injury (or worse) that could well have occurred. On no reasoned or just view could it be thought that the sentence was excessive.
At the hearing of the appeal Ms Rowan sought to expand her grounds of appeal to include parity, based on the sentence received by the co-offender, Mr Vasilevski.
Ms Rowan put the argument with clarity and with such force as it was able to withstand. It must, however, fail. The slightly different language used by his Honour (being the sentencing Judge on both occasions) “slightly above mid-range” and “about mid-range” does not disclose any substantive difference in how he viewed the criminality of both young men. Clearly their joint and contemporaneous participation in the offence could, and indeed should, lead to the conclusion of the substantive equivalence of their criminality. The applicant received a 20% discount, the co-offender 15%. Yet they received the same sentence.
The sentences are, however, explicable because of the subjective circumstances of the two young men. Mr Vasilevski revealed true remorse for his crime. That could not be said for the applicant. This remorse of Mr Vasilevski clearly separated the two men in the sentencing tasks. It was a sufficient basis to differentiate the two offenders and to deny the applicant any reasonable basis to have any grievance about the difference between the two sentences. This conclusion is reinforced by the view, reasonably open, that the sentence imposed on the applicant was not heavy.

ADAMS J: I have been provided with the draft judgments of the President and Howie AJ. I agree with the orders proposed by Howie AJ and his Honour’s reasons, together with the additional remarks made by the President. I wish to add some further comments of my own concerning the application of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 in light of the significance that the question of the applicant's remorse ultimately (and rightly) received. That provision reads --
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: …
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
...
What is the significance of the plea of guilty in light of this provision? In my opinion, although a plea of guilty is, in law, no more than an admission of the elements of the offence it is, as a matter of fact, an acceptance or acknowledgment of guilt for the offence. That it is formal does not change this inherent characteristic. The mere fact that there may be a dispute as to how that guilt came about, which is decided adversely to the offender, does not cause it to lose this characteristic. It follows that the plea of guilty is, inherently, "evidence that... [the offender] has accepted responsibility for his for her actions", the only relevant actions being those actions which gave rise to the offence. Similarly, where those actions have caused injury or loss, a plea which expressly or by necessary implication refers to such consequences, must logically constitute an acknowledgment of those consequences. The presence of these two factors provides some evidence of remorse. But it might not be persuasive evidence, depending on the circumstances.
The key notion conveyed by the concept of remorse is a commonsense one -- as shown by all the dictionary definitions -- it is regret or sorrow for the wrongdoing. In some cases, perhaps most, the plea of guilty will be motivated or at least accompanied by regret for the crime that has been committed. The extent of that regret will, to my mind, determine the extent of remorse and, hence (within limits) the extent of mitigation. Remorse that results in actions and not only words is plainly more significant. A plea of guilty where an admission of the offender provides, as a practical matter, the only evidence against him is an action of this kind, though, as it happens, it occurs by way of a word. In my view, these fundamental notions are part of ordinary human experience and, for a very long time, the criminal law, which ought not to be disregarded or confined by nice distinctions or technical qualifications.
It follows that, although the reason why an offender pleads guilty does not qualify its legal effect (though, of course, this might be material when he or she seeks to withdraw the plea), it remains significant in the assessment of the plea's significance as a potential mitigating factor. The Courts have, for example, always given very limited significance to a guilty plea as evidence of remorse where it appears to be motivated merely by acknowledgment of overwhelming evidence of guilt and, at the other end of the scale, considerable significance to a plea where evidence of guilt is exiguous or otherwise non-existent. A plea in the former circumstances may well be consistent with the presence of remorse but, without more, is scarcely significant evidence of remorse. There is no bright line that demonstrates the limits of remorse. It will always be a matter of degree. Even slight remorse is capable of some significance, though in the circumstances it might well not affect the sentence at all.
Remorse will often be relevant to a greater or lesser extent to the assessment of the prospects of rehabilitation. It does not seem to me that, in this context, s 21A(3)(i) is material, but I do not express any final view on this point.

Applying these general notions to the question of the applicant's remorse, his rejected evidence as to both what happened and his own role, given in an attempt to reduce his culpability and moral responsibility for what he did (and, implicitly, increase the culpability of his co-offenders) justified the conclusion that his plea of guilty, though it was evidence of the matters in s 21A(3)(i) and some evidence of remorse properly so-called, did not establish to the necessary standard that the applicant was in fact remorseful to any significant degree -- that is to any extent that justified giving it any mitigating effect.

I close this discussion with the observation that many of the changes brought about by the Crimes (Sentencing Procedure) Act 1999 have introduced artificial, abstruse and technical considerations into the process of sentencing which add considerably to the uncertainty and complexity of the process without any discernible countervailing advantage in either transparency or outcomes. Sentencing is difficult enough a task without the need to negotiate a logical minefield that already has produced volumes of what should have been unnecessary jurisprudence, as the Courts have attempted to lay down a coherent and logically consistent path through a terminological jungle in the attempt, unsatisfactory in significant ways, to do their conscientious best to apply the will of Parliament. However, once it is appreciated that s 21A(3)(i) merely lays down necessary prerequisites for taking remorse into account rather than defining the notion of remorse itself, and is limited strictly to the plain sense of its requirements, it will be seen that it does not change long-established principle. To that extent, its only harm may be the encouragement of yet more litigation.
HOWIE AJ: This is an application for leave to appeal against a sentence imposed by Conlon DCJ upon the applicant who had pleaded guilty in the Local Court to a charge of robbery in company. That is an offence contrary to s 97(1) of the Crimes Act 1900 for which a maximum sentence of 20 years imprisonment is prescribed. On 11 December 2009 the applicant was sentenced to a term of imprisonment comprising a non-parole period of 18 months with a balance of term of 18 months. The sentence commenced on 11 December 2009 and the non-parole period expires on 10 June 2011.
There was a statement of facts tendered by the Crown but the applicant disputed them in relation to the role he was alleged to have played in the attack upon the victim. The applicant gave evidence to the effect that he had not committed the offence because he denied taking any part in any assault upon the victim or stealing any property from him. According to the applicant the attack upon the victim came as a complete surprise to him. His evidence traversed his plea of guilty but no point was taken on that basis either before the sentencing Judge or in this Court. The Judge rejected the applicant’s version and dealt with him according to the facts tendered by the Crown. It was not suggested in this Court that the Judge was not entitled to find the facts as he did.
Initially the only ground of appeal was as follows:
His Honour erred in treating the objective seriousness of the offence as falling slightly above mid-range for [an] offence of this type.
However, at the hearing of the application a further ground was sought to be added which complained of disparity between the sentence imposed upon the applicant and that imposed upon a co-offender who was sentenced by Judge Conlon about 6 months after he dealt with the applicant.
The facts upon which the applicant was sentenced can be stated briefly. On 8 November 2008 the victim was walking in the vicinity of a railway station at about 3.30am as he had just farewelled some friends who had left on a country-bound train. He heard yelling coming from a nearby intersection and altered his course to avoid coming into contact with the persons responsible. However, a short time later he observed a vehicle travelling at high speed in his direction. The vehicle stopped behind him and someone asked him whether he had a lighter. He turned and saw three males alight from the vehicle.
Before he could say or do anything, he was punched by one of the males to the temple. He then felt a hard kick to the back of the legs causing him to fall to the ground. Three men then repeatedly kicked him about the body. The victim tried to protect his head with his arms. He told the men to take whatever they wanted. One of the males said, “What has he got, what has he got?” The victim attempted to get his wallet from his pocket to hand to his attackers but he was rolled over and one of the males took his wallet and his mobile phone. The men then ran back to the car and it sped off.
The victim returned to the railway station and contacted Triple O. Shortly the police and an ambulance arrived. As a result of the attack upon him, the victim suffered bruises to his left leg, soreness to his head lasting several days and redness around the area where he was punched. His wallet contained between $20 and $60 in cash, credit cards and personal papers.
Fortunately, although not for the applicant, police, in the course of a separate and unrelated inquiry, intercepted a call made by the applicant shortly after the attack upon the victim. The call was made to an acquaintance of the applicant who was at home and had been asleep. The relevant part of the conversation was as follows (A is the applicant and B his acquaintance):
A: I want to go to the brothel man
B: Brothel
A: Yeah Piccadilly, Muggsy just picked me up now we just pumped some cunt and took his phone and wallet.
B: Who you with?
A: Huh
B: Who you with?
A: We are going back into town we swapped cars cause we smashed some cunt and fuck we are coming back in.
A: I don’t know bro. We are going to smash someone take another phone and wallet and gun it.
B: Who are you with?
A: Me and Muggsy and my mate Pat. Me and Muggsy just mauled some cunt fucking took his phone and wallet. Some one jumped me I got jumped bro.
B: Who jumped you?
A: I was out the front of the [P]iccadilly brothel and some cunt walks up to me and goes you got a dari, and I go no bro and he slapped me like hard so I started to punch on with the cunt and some cab driver broke it up as his mates came in and it was 3 on 1 I was cop[p]ing whacks but they couldn’t hit me bro, They hit me in the back. I waited for Muggsy to come down and we saw some Kanga one out near the traino so we pumped him took his phone and wallet and swapped cars that’s it.
B: Youse are dumb cunts hey
A: Why? We are going to pump someone out we will call you soon go to sleep. I will call you tomorrow I am going to pump someone out we will call you bye.
The reference to a “Kanga one” was, according to evidence given by the applicant at the sentencing hearing, a reference to a person of Australian appearance. “Muggsy” was the co-offender Vasilevski.
The applicant was born on 4 June 1986 and was aged 23 at the date of sentencing. He had no relevant criminal record although he had been fined in 2004 for traffic matters. He gained a trade as an auto electrician and had been in continued employment thereafter. There were numerous testimonials placed in evidence praising the applicant’s general character and his attitude to his family and work. Some referred to the applicant’s remorse but, in light of the evidence he gave and his conduct with the officer who prepared the pre-sentence report, the Judge was entitled to find, as he did, that there was no evidence of remorse apart from that derived from the plea of guilty.
The pre-sentence report was unfavourable to the applicant because of the inconsistency in the versions that he gave to the officer as to his involvement in the offence. The report contains the following passage:
Throughout the interview, [the applicant] appeared to minimise his behaviour and demonstrated limited insight into either his involvement in the offence or the possible consequences of his actions. In addition, he appeared to be unable to express how his behaviour may have impacted upon the victim and blamed the victim for triggering his actions. Furthermore, [the applicant’s] continued dishonesty in relation to his involvement in the offence is of concern.
Despite the lack of remorse and his dishonesty in the evidence he gave before his Honour, the Judge found that the applicant had good prospects of rehabilitation. That was a generous finding. Also, in my opinion, the applicant was very fortunate to have a finding made of special circumstances to reduce the non-parole period. The Judge made that finding simply because it was the applicant’s first time in custody. There have been decisions of this Court indicating that such a fact alone could not justify a finding of special circumstances. Further, in light of the fact that the pre-sentence report indicated that there was no issue that could be addressed by the probation service, it is difficult to understand how the applicant needed a longer period on parole than would be provided by the statutory relationship in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. But even assuming that a finding of special circumstances was open, a reduction of the non-parole period to fifty per cent of the overall sentence was extremely lenient.
The first complaint before this Court is that the Judge over-estimated the seriousness of the offence. The relevant passage of the sentencing remarks, upon which the ground is based, is as follows:
[The applicant’s counsel] submitted that the victim did not sustain any serious injuries. That may be true but the savagery of this attack was potentially very dangerous. This Court has seen too many examples of single punches and kicks resulting in the death of persons. It is indeed fortunate that the victim’s injuries were not more serious. However, this fact alone does not diminish the objective seriousness of this crime in any significant way. My assessment of the objective seriousness is that it falls slightly above the mid range for offences of its type.

The written submissions filed for the applicant sought to rely upon an argument that his Honour erred in taking into account the potential injuries that might have arisen from such an assault and used that matter to find that the offence was of greater severity than it was. The oral arguments did not seek to re-ventilate this issue and counsel for the applicant rather placed more weight on the parity argument than on the assertion that the sentencing remarks by his Honour were erroneous.
In my opinion the Judge was entitled, in determining the seriousness of the offence, to have regard, not only to the fact that actual violence was used, but also the nature of that violence. He was also entitled to take into account that the type of violence used could have resulted in very serious injury, even death. The fact that the violence did not result in serious injury was not a matter of mitigation: had the injuries been more serious, it would have been a matter of aggravation or may have resulted in a more serious offence or a further charge in relation to the injury inflicted.
It was not, as I understand his Honour’s reasons, that the potential for serious injury or death led to his finding that the offence was above the mid range of seriousness. Rather he formed that opinion because the offence was not mitigated by the fact that the victim’s injuries were not as serious as they might have been given the nature of the violence used.
Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period.
In Sivell v R [2009] NSWCCA 286 McClellan CJ at CL stated:
2 The sentencing Judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period.
3 Although a sentencing Judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575.
4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed.
5 The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered.
Further, it seems to me that the course adopted by the Conlon DCJ leads to a “two-step” approach to sentencing by dividing the “instinctive synthesis” into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [35] to [39]. In a case where a standard non-parole period applies the court is forced by the terms of the legislation to engage in a stepped approach to sentencing involving, as the first step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness.
In any event, in the present case I have difficulty in understanding what was the range of offending to which his Honour was referring. It cannot have been the range of all offending coming within the offence of robbery in company, otherwise I do not understand how an offence “slightly above mid range” can result in a sentence of 3 years as against a maximum of 20 years. If it were a finding in relation to the usual offence of this nature that comes before the court, the finding was irrelevant. In a case in which there is an applicable standard non-parole period, such a finding is required in determining whether, and to what degree, there should be a departure from the standard non-parole period. Because there was no standard non-parole period, the finding should not have been made.
The applicant raised the point that this finding was inconsistent with a finding made by the Judge in respect of the co-offender, Vasilevski. As I have indicated, he was sentenced some six months after the applicant. The Judge, quite correctly, found that there was nothing to distinguish between the criminality of the applicant and his co-offender. However, his Honour, in sentencing the co-offender, said:
………..my assessment of this offence so far as all three offenders were concerned is that it falls within about the mid-range of objective seriousness for offences of its type.
The applicant seeks to draw a distinction between an assessment made in his case that the offences fell “slightly above mid range” and the assessment made in the case of his co-offender that it fell “within about mid-range”. It is unclear, of course, whether his Honour changed his view of the objective seriousness of the offence or whether he saw any significant difference between a finding that an offence fell “slightly above mid range” and a finding that it was “about midrange”. But even if his Honour were in error in his determination of the objective seriousness of the offence, either in the case of the applicant or in the case of the co-offender, it is difficult to see how any error affected the sentence imposed.
As I indicated earlier, in my opinion the sentence was a very lenient one, particularly having regard to the non-parole period imposed. Had the applicant received any lesser sentence, it would have been arguably inadequate. In my opinion there was no error in the sentence imposed upon the applicant even if it is assumed that he was sentenced on a different finding as to the objective seriousness of the offence from his co-offender.
The parity argument can be stated simply. The applicant and the co-offender received the same sentence for the offence despite the fact that the applicant received a discount of 20 per cent yet the co-offender received a discount of only 15 per cent. The applicant complains that in his case the Judge must have started with a higher sentence before discount than he did with the co-offender. The argument is that, as a result, the applicant is to serve 3 months longer for the offence than the co-offender must serve for that offence, notwithstanding that their criminality was the same and they had the same subjective circumstances. As a result it is contended that the applicant has a justifiable sense of grievance.
To arrive at a sentence of 3 years with a discount of 20 per cent the undiscounted sentence would have been 3 years 9 months. To arrive at a sentence of 3 years with a discount of 15 per cent, the undiscounted sentence must have been about 3 years 6 months. The complaint is that there was no reason for the Judge to have chosen different sentences before applying the discounts.
It can be assumed that there was nothing to distinguish the two offenders so far the offence was concerned. It was a joint criminal enterprise. Neither was found by the Judge to be the leader in the enterprise. Unless there was something different in their subjective circumstances that could justify the difference in the sentences imposed, I am prepared to accept that this Court should intervene. A period of 3 months is a significant difference in the two sentences in the circumstances of this case, even though it would translate into a reduction of the non-parole period by about 6 weeks.
Both the applicant and his co-offender were young men. Neither had any previous criminal record. The co-offender committed two further offences, one of violence, after the offence he committed with the applicant. Although the Judge was concerned, in the co-offender’s case, with the issue of totality, that cannot account for the different sentences imposed because the totality principle was addressed by making the sentences partly cumulative. The applicant was aged 23 when sentenced and the co-offender aged 21. That age difference would not have had such a significant impact to result in different sentences.
To some extent the applicant’s subjective circumstances were better than that of the co-offender because the co-offender had suffered from a drug addiction. But the Judge found in each case that there were good prospects of rehabilitation.
The only significant difference between the two offenders lay in their attitude to the crime they had committed. The applicant, even at the sentencing hearing, was refusing to accept any responsibility for the offence. He gave sworn evidence that he did not assault the victim or steal his property. As I indicated earlier, it is hard to see on his version of the facts that he committed the offence to which he had pleaded guilty. The probation officer found him to be dishonest and that he had “limited insight into either his involvement in the offence or the possible consequences of his actions”. The Judge found that he had no remorse except that which attended the plea of guilty.
On the other hand the co-offender accepted his involvement and even admitted to having thrown the first punch. He told a psychologist, who furnished a report to the court, that he wished to apologise to the victim. The Judge quoted from the psychologist’s report that she had found the co-offender contrite and accepted full responsibility for his actions. The Judge referred to expressions of remorse he had also made to the probation officer. The Judge received a letter from the co-offender into evidence and quoted from it during his sentencing remarks. In that letter the co-offender expressed sympathy for his victims.
Remorse is itself a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. That section is as follows
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
….
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

In R v MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159 this Court was critical of a discount given for a combination of a plea of guilty and remorse. The Court indicated at [44] that no separate discount should be given for remorse. But it does not follow, and it would be inconsistent with s 21A(3)(i), that remorse falling within the section cannot lead to a more lenient sentence. Of course, as was noted in MAK & MSK, there is a real risk of double counting in reducing a sentence for the offender’s remorse, good prospects of rehabilitation and a finding that he is unlikely to re-offend because these matters are so inter-related. But the statute makes each of them a matter of mitigation.

His Honour did not refer to s 21A(3)(i) but he did take into account the co-offender’s remorse and could only do so if the pre-conditions in the section had been met. From what he said in his remarks, it appears that the co-offender met both those preconditions. Minds might differ as to the significance to be given to that factor, but there could not have been a greater dissimilarity between the attitude shown by the applicant to the robbery offence and that shown by the co-offender at the time of sentencing. The applicant could not receive a greater sentence because of his lack of remorse but the co-offender could receive a reduction in his sentence by reason of this mitigating factor. Had the co-offender not received a lesser sentence, he could claim a justifiable sense of grievance because no account had been taken of a mitigating factor present in his case but not in the case of the applicant.
This consideration of remorse brings me back to a finding that his Honour made in favour of the applicant and that I referred to earlier. His Honour stated:
I am unable to see any evidence of remorse (aside from the plea itself) and I do take his plea into account as a mitigation factor.
With respect, this finding contains an internal inconsistency and was plainly wrong. The plea carried with it no evidence of remorse. Not infrequently, in my experience, a sentencing court finds that a plea of guilty carries with it evidence of contrition. For the purposes of sentencing, I do not understand that there is any relevant difference between contrition and remorse, whatever subtle distinction might be draw between the two words in the richness of the English language. The issue of remorse, as I have already noted, is governed by s 21A(3)(i).
In my opinion a plea of guilty may by inference amount to evidence of remorse for the purpose of the section but it will rarely be sufficient to meet the pre-conditions for it to be used as a mitigating factor. The plea is simply an admission by the offender of the facts that form the elements of the offence. The court is entitled to act upon the plea regardless of the reason why the offender made the admissions inherent in the plea of guilty. The offender is bound by the plea even if, as appears to be the case here, the offender does not in fact believe he is guilty: see Wong v DPP [2005] NSWSC 129; 155 A Crim R 37. Provided that the offender intended by the plea of guilty to make the relevant admissions, it does not matter why he made those admissions.
Of course, s 22 of the Crimes (Sentencing Procedure) Act requires the court to take into account the fact that an offender has pleaded guilty. But apart from its utilitarian value, I have difficulty understanding how a plea of guilty alone mitigates an offence where, as is now the case under the Act, the offender must persuade the court by evidence that he, or she, is truly remorseful. In any event, in the present case, the plea of guilty was not evidence of remorse where the offender had otherwise shown no remorse. I do not understand how in this case the plea of guilty was a mitigating factor other than by reason of its utilitarian value.
The Court has a discretion whether to intervene because of an asserted lack of parity. In my opinion there is a valid basis to distinguish between the applicant and his co-offender and so account for the slight difference in their sentences. In any event, the sentence imposed upon the applicant was so lenient that it should not be reduced further. In my opinion this ground has not been made out.
However, because the sentence imposed upon the applicant was not greater than 3 years, the Judge ought to have made an order releasing the applicant to parole on the date of the expiration of the non-parole period: see s 50(1) of the Crimes (Sentencing Procedure) Act. The only error made by his Honour was the failure to make such an order.
In my opinion the Court should give leave to the applicant and allow the appeal but only to the extent of making an order that the applicant be released to parole on the date of the expiration of the non-parole period.
I propose the following orders:
1. Leave to appeal is granted,
2. The appeal is allowed in part,
3. The sentence imposed in the District Court is confirmed and the Court orders that the applicant be released to parole on 11 June 2011.
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LAST UPDATED:
5 November 2010