CATCHWORDS:
CRIMINAL LAW – CRIMINAL APPEALS – SENTENCING APPEAL
aggravated indecent assualt
using statutory non-parole period as more than a guideline
using statutory non-parole period as starting point for calculation of sentences
misuse of standard non-parole period
objective seriousness
inappropriate reduction of discount for earliest plea of guilty based on other than utilitarian value of plea

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted
The sentence imposed on the applicant by his Honour Newman AJ on 28 April 2005 for the two offences of aggravated indecent assault contrary to s.61M(2) of the Crimes Act 1900, be quashed
Pursuant to the terms of s.7 of the Criminal Appeal Act 1912 the sentence imposed by his Honour Newman AJ on 28 April 2005 on the applicant for the count of murder, be varied in accordance with the following
The following sentences be imposed: i. For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 2), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring on 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008
ii. For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 3), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008
iii. For the offence of murder contrary to s.18 of the Crimes Act 1900, committed between 22 February 2004 and 23 February 2004, the applicant be sentenced to imprisonment for a non-parole period of 18 years and five months commencing 23 June 2005 and expiring 22 November 2023 with the remainder of term of 5 years and 3 months expiring 22 February 2029.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/884
SPIGELMAN CJ
HOWIE J
ROTHMAN J
Wednesday 8 November 2006

STEFON PERRY v REGINA

Judgment

SPIGELMAN CJ: I agree with Rothman J.
HOWIE J: I agree with Rothman J.
ROTHMAN J: The applicant, Stefon Perry, pleaded guilty to three charges: the murder of Karen Newby on the night of 22 February - 23 February 2004; and two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perry v R

Details

AGLC: Perry v R [2006] NSWCCA 351
Case: [2006] NSWCCA 351
Decision Date: 8 November 2006

CaseChat Overview and Summary

Perry v R was a criminal appeal heard by the Court of Criminal Appeal of New South Wales. The appellant, Perry, was convicted of aggravated indecent assault and was sentenced to a term of imprisonment. The central issue was whether the primary judge misapplied sentencing principles, particularly by using the statutory non-parole period as more than a guideline and by reducing the discount for the early plea of guilty. The appeal questioned if these misapplications warranted the sentence being quashed and the case being re-sentenced.

The court examined if the primary judge erred by using the statutory non-parole period as a starting point for calculating sentences and by misusing the standard non-parole period. Additionally, the court assessed if the reduction of the discount for the early plea of guilty was appropriate, considering it might reflect a confusion between the utilitarian value of the plea and remorse. The court also considered if the overall sentence had a ratio greater than 3:1, as well as the objective seriousness of the offences and the need for proportionality and totality in sentencing.

The Court of Criminal Appeal found that the primary judge's application of sentencing principles was flawed. The reduction of the discount to 12½ percent for the early plea of guilty was unwarranted and bespeaks a confusion between the utilitarian value of the plea and the remorse. The court quashed the sentence imposed by the primary judge and re-sentenced the appellant. The court allowed a 25 percent discount for the early plea of guilty, assessed the objective criminality of the offences as mid-range, and set a total sentence with a ratio of 3.76:1. The court also noted that the sentence for the most serious offence should be imposed last due to the principle of totality.

The final orders of the court were to quash the sentences imposed on the two charges under appeal and to re-sentence the appellant with a total sentence no longer than the original sentence, resulting in a ratio of 3.76:1. The court exercised its power under the Criminal Appeal Act 1912 and the Crimes (Sentencing Procedure) Act 1999 to vary the commencement of the murder sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ HOWIE J

While in certain circumstance it may be appropriate for a plea of guilty not to lead to any discount, the general rule is that it will. In this case, the reduction of the discount to 12½ percent is a reduction which is unwarranted, at least to that extreme, and bespeaks a confusion between the utilitarian value for which the 10 to 25 percent discount is allowed and the remorse which is another factor in the sentencing process: Thomson and Houlton, supra. Conclusion The determination of an appropriate sentence is an exercise of discretion which involves the balancing of sometimes inconsistent goals and, like the exercise of any discretion, will be interfered with by an appellate court only on the basis of: the application of a wrong principle; the consideration of an extraneous or irrelevant matter; a refusal to take into account a relevant matter; or, a manifest error such that the decision is plainly unjust. For the reasons set out earlier, the sentence imposed by his Honour should be quashed. It falls to the Court in those circumstances to re-sentence. I allow, for the very early plea of guilty, a discount of 25 percent to account for its utilitarian value. I do not consider that there are special circumstances requiring a longer period of rehabilitation after entering the community but I also do not consider that the overall sentence should have a ratio greater than 3:1. Because I am constrained to set a total sentence no longer than the sentence imposed below, I will reduce the remainder and the end result will be a ratio of 3.76:1. I do not interfere with the assessment that the offences in question are mid-range in objective criminality. In accordance with the principles adumbrated by the High Court in Veen (No.2) (1988) 164 CLR 465, I note that the applicant has a prior criminal history but not one which requires the Court to impose condign punishment to deter the offender in regard to these particular offences. I also bear in mind that, given that these offences are being imposed at the same time as the imposition of the sentence for murder that occurred on the same night, there must be the application of a degree of proportionality and totality. In relation to totality, in circumstances such as these, it is both easier and more appropriate to deal with the most serious offence last. Notwithstanding that no appeal has been filed against the sentence for murder, the Court has the power, as it is to quash the two sentences under appeal, to quash or vary any other sentence passed at the trial: s.7 Criminal Appeal Act 1912. The Court also has power pursuant to the terms of s.59 of the Crimes (Sentencing Procedure) Act 1999 to vary the date of commencement of the murder charge, as the Court is to quash the sentences imposed on the two charges under appeal. Section 7 of the Criminal Appeal Act 1912 is a wider power which allows variation of the sentence. Section 59 of the Crimes (Sentencing Procedure) Act 1999 allows only variation of the commencement (and necessarily the expiry) of the murder sentence.

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ HOWIE J

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Actions

Citations

Perry v R [2006] NSWCCA 351

Most Recent Citation

Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77

Cases Citing This Decision

Garcia v The The King [2022] NSWCCA 172
Citation 1

…ving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 . 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component…
Ghazzawy v R (Cth) [2021] NSWCCA 70
Citation 2

…ving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 . 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component…
Kaurasi v R (Cth) [2020] NSWCCA 253
Citation 3

…ng witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component in…
Hijazi v R [2020] NSWCCA 97
Citation 4

…ng witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component in…
Bae v R [2020] NSWCCA 35
Citation 5

…ng witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 . 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component i…
Cranfield v The Queen [2018] ACTCA 3
Citation 6

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no componen…
R v Rappel [2017] ACTSC 38
Citation 7 (Para 1)

…may evidence a willingness to facilitate the course of justice. Cases such as R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 380; and R v Perry [2006] NSWCCA 351; 166 A Crim R 383 suggest that the utilitarian value of a guilty plea is the more significant component of any reduction in sentence for a plea of gu…
Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) [2015] NSWIC 15
Citation 8

…ving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component…
Monfries v The Queen [2014] ACTCA 46
Citation 9

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no componen…
Matthews v R [2014] NSWCCA 185
Citation 10 (Para 27)

…stances when there is such accumulation if no reasons are given: see, for example, R v Simpson (1992) 61 A Crim R 58 at 61 (Hunt CJ at CL), Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 385 at [16] (Rothman J) and Ghamaraoui v R [2009] NSWCCA 111 at [20] (Grove J) and [28] (Howie J).…
Morton v R [2014] NSWCCA 8
Citation 11 (Para 1)

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no componen…
McMullen v R [2013] NSWCCA 261
Citation 12 (Para 1)

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no componen…
Tan v The Queen [2013] NSWCCA 262
Citation 13 (Para 5)

…ourt should be slow to depart from a sentencing judge's conclusion as to objective seriousness of an offence: ( R v Dang [2005] NSWCCA 430; Perry v R [2006] NSWCCA 351; 166 A Crim R 383; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103).…
Kertai v R [2013] NSWCCA 252
Citation 14 (Para 34)

…Court should be slow to depart from a sentencing judge's conclusion as to objective seriousness of an offence: (R v Dang [2005] NSWCCA 430; Perry v R [2006] NSWCCA 351; 166 A Crim R 383; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103).…
Martin v The Queen [2012] NSWCCA 253
Citation 15 (Para 4)

…the finding of special circumstances in connection with the overall sentence will lead to an inference that the matter has been overlooked: Terry v R [2006] NSWCCA 351 at [16]; R v Hung Lo [2005] NSWCCA 436 at [74].…
Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56
Citation 16

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.…
Kalache v R [2011] NSWCCA 210
Citation 17 (Para 1)

…] NSWCCA 327; R v Attard [2004] NSWCCA 376; R v Ibrahim [2005] NSWCCA 43; R v Swan [2005] NSWCCA 252; Fina'i v R [2006] NSWCCA 134; Perry v The Queen [2006] NSWCCA 351; (2006) 166 A Crim R 383; Buadromo v R [2007] NSWCCA 43; GAC v The Queen; WC v The Queen [2007] NSWCCA 287; (2007) 178 A Crim R 1; Dunn v R [2007] NS…
R v Sullivan [2010] NSWSC 755
Citation 18

…NSWCCA 360 Collon v R [2009] NSWCCA 187 Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219 Perry v R [2006] NSWCCA 351; 166 A Crim R 383 R v Hemsley [2004] NSWCCA 228 R v McEvoy [2010] NSWCCA 110 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Slater [2001] NSWCCA…
Stephens v R [2010] NSWCCA 93
Citation 19 (Para 37)

…jective seriousness an offence lies - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103. Nevertheless, a consideration of the evidence makes my conclusion of error inevitable. I have summarised that evidence…
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Citation 20

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.…
R v Robert Borkowski [2009] NSWCCA 102
Citation 21

…saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 .…
Boney v R [2008] NSWCCA 165
Citation 22 (Para 3)

…where, in the range of objective seriousness an offence lies - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103. Nevertheless, a consideration of the evidence makes my conclusion of error inevitable. I have…
R v Fisher [2008] NSWCCA 103
Citation 23 (Para 5)

…th such a finding unless it concludes that the finding was not open - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73. However in this case his Honour’s finding was demonstrably wrong. The objective seriousness of a number of the offenc…
SDM v The Queen [2007] NSWCCA 34
Citation 24 (Para 39)

…ll generally consider this not to be a deliberate departure, but rather an understandable mistake of the effect of cumulative sentencing: Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 383 at [16], R v Swan [2005] NSWCCA 252 (“ Swan ”).…

See all citing cases →

Cases Cited

Mulato v R [2006] NSWCCA 282
Citation 1 (Para 4)

…ght not interfere with a sentencing judge’s adjudication of the objective culpability of an offence: R v Dang [2005] NSWCCA 430 at [22]; R v Mulato [2006] NSWCCA 282. While the Court may more readily interfere if no basis is given for the assessment, the Court will not interfere unless the characterisation of crimin…
R v Brown [2006] NSWCCA 249
Citation 2 (Para 10)

…with s.44, a failure to comply with that section will not of itself give rise to a lesser sentence: see Itaoui v R (2005) 158 A Crim R 233; R v Brown [2006] NSWCCA 249. As has been made clear on a number of occasions, s.44 controls the judicial act, not the process of reasoning leading to such an act: see R v Way (2…
R v Dang [2005] NSWCCA 430
Citation 3 (Para 4)

…een manifest error, an appeal court ought not interfere with a sentencing judge’s adjudication of the objective culpability of an offence: R v Dang [2005] NSWCCA 430 at [22]; R v Mulato [2006] NSWCCA 282. While the Court may more readily interfere if no basis is given for the assessment, the Court will not interfere…
R v Swan [2005] NSWCCA 252
Citation 4 (Para 11)

…ry relationship between the non-parole period and the balance of sentence: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743; R v Swan [2005] NSWCCA 252. Therefore, I do not suggest that his Honour did not have good reason to find special circumstance in relation to the last sentence or sentences impo…
R v Way [2004] NSWCCA 131
Citation 5 (Para 10)

…49. As has been made clear on a number of occasions, s.44 controls the judicial act, not the process of reasoning leading to such an act: see R v Way (2004) 60 NSWLR 168; R v Moffitt (1990) 20 NSWLR 114. If the reasoning process is otherwise correct, and the sentence does not otherwise disclose error of a kind that sh…
Johnson v The Queen [2004] HCA 15
Citation 6 (Para 7)

…ed by the High Court in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, each of which was explained (and reconciled) in Johnson v The Queen (2004) 78 ALJR 616, allow some flexibility in approach. I will apply the orthodox approach. I will impose a separate sentence for each offence, taking into…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 7 (Para 8)

…This Court in R v Thomson and Houlton (2000) 49 NSWLR 383 discussed the operation of s.22 of the Crimes (Sentencing Procedure) Act 1999 and the appropriate method of applying it. Chief Justice Spigelman (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) said: “[3] It has long been the practice of this Co…
Pearce v The Queen [1998] HCA 57
Citation 8 (Para 7)

…The application of the principles adumbrated by the High Court in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, each of which was explained (and reconciled) in Johnson v The Queen (2004) 78 ALJR 616, allow some flexibility in approach. I will apply the orthodox approach. I will impose a separ…
Mill v The Queen [1988] HCA 70
Citation 9 (Para 7)

…The application of the principles adumbrated by the High Court in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, each of which was explained (and reconciled) in Johnson v The Queen (2004) 78 ALJR 616, allow some flexibility in approach. I will apply the orthodox approach. I will impose…
Veen v The Queen (No 2) [1988] HCA 14
Citation 10 (Para 5)

…In accordance with the principles adumbrated by the High Court in Veen (No.2) (1988) 164 CLR 465, I note that the applicant has a prior criminal history but not one which requires the Court to impose condign punishment to deter the offender in regard to these particular offences. I also bear in mind that, given that…
Saraswati v The Queen [1991] HCA 21
Citation 11 (Para 17)

…ravity of the offences in question have a number of features. The High Court described some of the range of offences with which s.61M is concerned in Saraswati v The Queen (1991) 172 CLR 1, particularly in the judgment of McHugh J.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 15)