R v Misiepo
[2005] NSWCCA 405
•24 November 2005
CITATION: R v Misiepo [2005] NSWCCA 405
HEARING DATE(S): 18 November 2005
JUDGMENT DATE:
24 November 2005JUDGMENT OF: Simpson J at 1; Adams J at 56; Hoeben J at 57
DECISION: Crown appeal dismissed.
CATCHWORDS: Crown appeal - plea of guilty - use of firearm - two offenders in car - victim shot - uncertainty as to which offender fired gun - co-offender's plea of guilty to robbery in company - judge declined to find that gun was used by or with knowledge of respondent - whether finding open after plea of guilty - joint criminal enterprise - whether knowledge of presence of gun implied in plea of guilty - timing of plea - application to withdraw plea - finding that plea entered at earliest possible opportunity - whether finding open - contrition - statutory requirement firstly to set non-parole period and then specify balance of term - whether necessary to determine non-parole period before total term - standard non-parole period - departure from standard non-parole period justified but not explained - Henry guideline for sentencing for armed robbery - offence and offender not within Henry profile - circumstances suggest more severe sentence than Henry guideline - sentence within Henry guideline - subjective circumstances - finding of special circumstances - rehabilitation - principles applicable to Crown appeals - Court's residual discretion in Crown appeals - appeal dismissed in exercise of discretion
LEGISLATION CITED: Crimes Act 1900 s97, s98
Crimes (Sentencing Procedure) Act 1999 Part 3 Division 1A, s44, s54BCASES CITED: Everett v The Queen [1994] HCA 49; 181 CLR 295
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Wall [2002] NSWCCA 42
R v Way [2004] NSWCCA 131; 60 NSWLR 168PARTIES: Crown - Appellant
Chad Frederick Misiepo - RespondentFILE NUMBER(S): CCA 2005/1371
COUNSEL: N Noman - Crown
M Ierace SC - RespondentSOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0697
LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ
2005/1371
Thursday 24 November 2005SIMPSON J
ADAMS J
HOEBEN J
1 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence imposed upon the respondent by McLoughlin DCJ in the District Court on 1 July 2005, following his plea of guilty to a charge of armed robbery with wounding, with respect to an offence committed on 3 February 2003. Pursuant to s98 of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for 25 years. Pursuant to Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of seven years is applicable to an offence against s98 which is in the mid-range of objective seriousness, where the offender is convicted after trial, and unless the court determines that there are reasons for departing from that sentence.
2 In addition to the offence on the indictment, the respondent asked that a further two offences, one of possession of a prohibited drug (cannabis) and one of receiving or disposing of stolen goods, be taken into account pursuant to Part 3 Division 3 of the Sentencing Procedure Act.
3 McLoughlin DCJ sentenced the respondent to imprisonment with a non-parole period of three years, and a balance of term of one year and nine months, commencing on 6 June 2003. The non-parole period will expire on 5 June 2006. He expressly found that special circumstances existed, within the meaning of s44 of the Sentencing Procedure Act, justifying departure from the statutory proportion between the non-parole period and the head sentence there provided.
the facts
4 The offence was committed at some time after 9.00 pm on 3 February 2003 at Mortdale. The respondent, in company with three others, by arrangement met the victim, Ben Aurisch, near a suburban railway station. Mr Aurisch understood that the purpose of the meeting was for him to supply the offenders with drugs. In fact, the purpose of the offenders was to rob Mr Aurisch of the drugs and of money. Mr Aurisch arrived, driving a motor vehicle. The respondent and one of his companions (Scott Perez) entered the vehicle, one of them sitting in the front passenger seat, and the other in the rear seat. The evidence did not permit a firm conclusion to be drawn as to which was which. The offender in the rear seat produced a “revolver-style firearm” and pointed it at the head of Mr Aurisch, who was still seated in the driver’s seat. The offender demanded drugs and money. Mr Aurisch accelerated. The offender in the front seat alighted from the vehicle. The offender in the back seat continued to point the firearm at Mr Aurisch. He fired one round, which penetrated Mr Aurisch’s left arm, and travelled through the arm and entered his chest cavity. The offender again demanded Mr Aurisch’s property; Mr Aurisch handed over his mobile telephone and a bag, belonging to another person, which he believed contained drugs.
5 Mr Aurisch was bleeding profusely from his arm and experienced pain in his arm and chest. He drove to a hotel near where he had first encountered the offenders. Police were notified. Mr Aurisch was taken by ambulance to a hospital, where a bullet was surgically removed from his chest. He remained in the hospital for two days.
6 It was the Crown case that the respondent was the offender in the back seat of the vehicle, and therefore the offender who actually fired the shot. However, he disputed that, and, after hearing evidence, McLoughlin DCJ declared himself not satisfied beyond reasonable doubt of that fact. The Crown accepts that this finding was open to his Honour and did not challenge it on appeal. The Crown therefore put the case on the alternative basis that the respondent was present with the other offenders in pursuit of a joint criminal enterprise.
7 The respondent was arrested on 6 February 2003 and has remained in continuous custody since that date.
subjective circumstances
8 Evidence was given in the sentencing proceedings by the respondent’s mother, Ms Sandra McGinnis. His Honour also had the benefit of a pre-sentence report, a psychological report, a letter written to him by the respondent, and a reference provided by a former employer. From these the following emerges.
9 The respondent was born on 22 December 1980. He was 22 years of age at the time of the offence. He had endured a disturbed and traumatic childhood and adolescence. He is the youngest of three children. His father was described by the respondent’s mother (who is estranged from him) as an exceptionally harsh and cruel man, who abused the children, both physically and emotionally. The respondent and his brother adopted the pattern of violence they learned from him. The respondent’s father suffered from a kidney disease, for which he required regular dialysis. On one account, he also suffered from bipolar disorder. At about the age of nine or ten the respondent was, on more than one occasion, sexually abused by his older brother, although the details of this did not emerge with any clarity. He now has no contact with his brother. At about the age of eight the respondent was diagnosed as having Attention Deficit Disorder, for which he was prescribed Dexamphetamine.
10 His behaviour deteriorated to the extent that his mother sent him to a live-in correctional institution, Boys Town, when he was in year eight. He left school the following year, in year nine, aged fourteen and a half. He undertook a short horticulture course, and worked in various forms of employment, including bush regeneration, builders’ labouring, and as a removalist.
11 At about the age of 15 or 16 he began using alcohol, illicit amphetamines, LSD and marijuana. He was binge drinking.
12 At about 17 he commenced a relationship from which a son, Baidon, was born. But in successive years, 2000 and 2001, when the respondent was 19 and 20, his partner gave birth to two stillborn children. The respondent was very affected by these losses, and became quite depressed. He was prescribed anti-depressant medication. The couple separated. The respondent began using heroin. He sought medical help and was prescribed methadone, but this meant that he had to cease taking anti-depressants. At some point he was granted custody of Baidon because his former partner was not coping.
13 The respondent then commenced another relationship. A daughter was born in July 2002. He maintains a relationship with the mother of this child. He also maintains amicable contact with Baidon’s mother, and with both children, to whom he is devoted.
14 Not surprisingly, in the light of this history, the respondent has, for a relatively young man, a quite extensive criminal history. He is first recorded as having appeared in a children’s court in 1997, when he was 16, charged with stalking and intimidating, trespass, hindering police, offensive behaviour and malicious damage. Thereafter, there are a number of entries for offences of the same or similar kind. There are also a number of offences of assault, and one of assault occasioning actual bodily harm. As at the time he was sentenced in respect of the present offence, the respondent had never been sentenced to a period of full-time custody. At the time he committed this offence he was on bail in respect of other charges.
15 What is, perhaps, surprising in the light of the history, is that the respondent has maintained employment, including one continuous period of almost three years with one employer. This employer wrote of him very favourably and is prepared to re-employ him.
the proceedings on sentence
16 The respondent was arrested on 6 February 2003. A trial was listed to commence on 1 December 2003, with one co-offender, Scott Perez. (There is little information available about the other two offenders, who appear to have played only a peripheral role in the offence. One, at least, was dealt with in the Children’s Court with, it seems, no finding of guilt recorded. He gave evidence to which I will later refer in the respondent’s sentencing proceedings.) Perez entered a plea of guilty to an alternative count of robbery in company, under s97 of the Crimes Act 1900, carrying a maximum penalty of imprisonment for 20 years. On 21 May 2004 he was sentenced by McLoughlin DCJ to a term of imprisonment made up of a non-parole period of twenty-one months, with a balance of term of two years. The respondent’s trial was stood over to 3 December 2003. On that day he entered a plea of guilty to the charge of armed robbery with wounding. At that time then counsel for the respondent advised the court that a factual dispute existed as to which of the two offenders actually fired the gun. For the purpose of hearing evidence with respect to that issue, the proceedings were listed before McLoughlin DCJ on 5 February 2004. Evidence on that day was taken from a police officer, from Mr Aurisch, and from David Tan, who was a friend of Mr Aurisch. Because of the unavailability of other witnesses, the Crown was unable to conclude the matter on that day.
17 In July of that year the respondent sought leave to withdraw his plea of guilty. This appears to have been done as a result of the dispute over the part played by him. On 31 March 2005, he consented to the dismissal of the application.
18 Further evidence was taken on 6 May 2005.
In order to solve the dispute about the role played by the respondent in the events, a number of witnesses were called by the Crown for the sentencing proceedings. As I have indicated, it was the Crown case that it was the respondent who actually had possession of, and fired, the gun.
19 Evidence was given in the respondent’s case by one person, Shane Moon, who had been present with the respondent and his co-offenders, but had not been involved in the entry into the car, or the shooting. He attributed to Perez the words:
- “Oh I just shot the guy.”
He also said that Perez had had the gun.
20 There was other evidence from Mr Aurisch concerning the colour of the clothing worn by the man in the back seat that could have provided the foundation for the inference that that was the respondent; and a description of that offender that did not correspond with the respondent’s appearance and therefore pointed the other way. However, as I have said, his Honour did not feel able to find that fact established beyond reasonable doubt, and it is neither possible nor necessary for this Court to do better.
remarks on sentence
21 The sentencing judge essentially recounted the circumstances of the offence, and the respondent’s subjective circumstances.
22 Significantly, his Honour found:
- “The offender organised and arranged the commission of this offence. His role in it was as leader of the pack. In his involvement in the commission of an offence, a firearm was used and a person suffered significant injury as a result.”
He also said:
- “ ... I do not find it [the gun] was used by or with the knowledge of the offender” (emphasis added).
The latter part of this statement (concerning the respondent’s knowledge of the use of the gun) is in direct conflict with an acknowledgment, made by the respondent’s then counsel of 5 February 2004, that the respondent did know of the presence of the gun. By 5 May 2005 the respondent was differently represented. The transcripts records counsel then appearing as saying:
- “His case is that he knew in the past that Perez to be in possession of a firearm and that whilst he didn’t specifically know that he had a firearm with him on this occasion, he knew in the past he’d carried one and the first he saw of it or knew of it was when Perez produced it.”
23 His Honour then determined that, absent the respondent’s plea of guilty, the appropriate sentence would have been one of a head sentence of six years and four months. In reaching that view he had regard to the principle of parity, with reference to the sentence imposed on the co-offender Perez. He expressed the view that, because of the respondent’s greater role in the planning and organisation of the robbery, his sentence was required to be longer than that imposed on Perez.
24 His Honour stated that he had regard to the guideline judgement of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346.
25 His Honour accepted the respondent’s plea of guilty as demonstrating both contrition, and as having utilitarian value. He accepted that the application to change his plea was made by the respondent in the belief that the plea of guilty was a plea that:
- “ ... he in fact had used or knew of the firearm.” (emphasis added)
He then said that he accepted that, when “the proper advice” was given to him, he resiled from his attempt to change the plea and adhered to the earlier entered plea of guilty, which, he held, had been done “at the earliest possible opportunity”. He said that he took the plea of guilty into account:
- “... as a show of contrition and having public utility”
and stated that he allowed a 25% reduction in sentence:
- “... to reflect the utility and contrition displayed by the plea”.
26 His Honour proceeded to impose the sentence I have already outlined.
the grounds of appeal
27 Essentially, the only ground of appeal was that the sentence imposed was manifestly inadequate. In support of this ground, the Crown sought to identify a number of errors in the sentencing process. They may be stated as follows.
(i) declining to find that the gun was used with the knowledge of the respondent;
(ii) in finding that the plea of guilty was entered at the earliest possible opportunity;
(iii) in the application of Part 3 Division 1A of the Sentencing Procedure Act;
(i) the respondent’s knowledge(iv) in failing to have regard to, or properly apply, the principles stated in Henry .
28 The plea of guilty could only have been entered (and accepted) on one of two bases. One was that the respondent was the offender in possession of, and who used, the gun. The other was that he was present with the offender who had possession of and used the gun in pursuance of a joint criminal enterprise. In order for the respondent to be shown to be guilty of the offence actually committed by a co-offender under these principles, it was necessary for the Crown to prove that the respondent knew of the presence of the gun, or, at the very least, of the possibility that a gun would be present. While it was open to the judge to decline to find that it was the respondent who used the gun, the Crown argued that it was not open to him, in the light of the plea, also to decline to find that it was used with his knowledge. The plea necessarily incorporated an admission of relevant knowledge.
29 Senior counsel who appeared for the respondent sought to attribute a different meaning to the words used by the judge. That was that the plea entailed an acknowledgement that the respondent knew of the presence of the gun as a possibility; that his knowledge was, not actual, but constructive. Knowledge of that possibility was derived from his admitted knowledge that Perez had, on previous occasions, carried a gun.
30 If his Honour did not accept that, then it was not open to him to proceed to sentence on the plea of guilty. There was never the slightest suggestion that the respondent would again seek to vary his plea. His knowledge of the presence of the gun had to be accepted. His knowledge of its presence necessarily entailed knowledge of the possibility that it would be used. Accordingly, I accept that error has been shown.
(ii) the timing of the plea
31 The judge found that the plea was entered at the earliest possible opportunity. In the light of the history I have set out above, this finding simply was not open. The plea of guilty was first entered on 3 December 2003, ten months after the offence. The respondent subsequently sought to withdraw it. His counsel conceded that the attempt to withdraw the plea created difficulties for the contention that he should be given credit for an early plea.
32 It seems that the respondent’s application to withdraw his plea was based on a misunderstanding of what was involved in pleading guilty to the offence. At least, that was the perception his Honour gained. Nevertheless, the discount under the guideline in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 is given in recognition of the utilitarian value of the plea. In this case the plea was deprived of some of its utilitarian value because of the application to withdraw it. Notwithstanding the respondent’s (ultimately aborted) attempt to withdraw the plea of guilty, McLoughlin DCJ allowed a 25% discount, the maximum usually thought to be allowable in respect of the utilitarian value and usually only allowed where the plea has, indeed, been entered at the earliest possible, or earliest reasonable, opportunity (and, it is not ordinarily necessary to add, maintained).
33 In the passages extracted above, his Honour wrapped the utilitarian value of the plea, and contrition evidenced by the plea, together to arrive at the discount he did. The Crown has also taken issue with this. To the extent that any finding of contrition was made, it was almost subliminal. Nowhere else in the remarks on sentence was there any reference to contrition. There was no express finding to that effect. The Crown has taken the approach that this was considered, and reflects a deliberate decision not to make such a finding, a decision that was, the Crown submitted, open. There was evidence on which a finding favourable to the respondent could have been made. The respondent had provided a handwritten letter addressed to the sentencing judge, which was, so far as one can tell from the words on the page, a genuine expression of regret.
34 The psychologist wrote:
- “Without prompting he told me that he regretted his involvement in the offences with which he has been charged ... ‘I think it was stupid ... I wish I could change it but you can’t ... so I will try and learn off it’.”
There was another statement of regret referred to in the report.
35 Contrasted with that is a passage in the pre-sentence report, in which the author wrote:
- “The offender was barely plausible in his apparent regret for the harm done to the victim of the offence.”
36 The Crown submitted that, given that the respondent did not give evidence, his Honour should have been (and this Court should be) circumspect in determining how much weight, if any, is given to assertions of remorse that are untested.
37 It is true that the respondent’s statements, recorded in the psychologist’s report, might be taken to be statements of regret about his own involvement, and the predicament in which he consequently found himself. Nevertheless, the psychological report is encouraging as to his developing insight and rehabilitation.
38 I think it is correct that it is difficult, on the material, and in the absence of oral evidence from the respondent, to reach a view about his attitude to the offence, leaving aside its consequences for him.
39 Nevertheless, I think the absence of any reference to contrition, other than that encompassed in the considerations of the discount to be given as a result of the guilty plea, is more likely to have been an oversight than a deliberately considered omission. It is true that the respondent did not give evidence and that hampers any strongly positive finding. In any event, all that is here in issue is whether, absent an express and reasoned finding of contrition, the allowance of a 25% for the plea of guilty was or was not open. I am of the view that it was not. The Crown’s contention in that respect has been made good.
40 In my opinion the allowance of 25%, the maximum usually regarded as permissible, was excessive. In my opinion the Crown has demonstrated error in this respect also.
(iii) the Sentencing Procedure Act, Part 3 Division 1A
41 S44 of the Sentencing Procedure Act now (operative in respect to offence committed on or after 1 February 2003) requires a court sentencing an offender to imprisonment firstly to set a non-parole period; and secondly to specify the balance of term. This is to be contrasted with s44 in its previous incarnation, which required a sentencing court firstly to fix “the term of the sentence” (i.e. the head sentence), and, secondly, to set a non-parole period.
42 When he ultimately sentenced the respondent, his Honour did so in accordance with the current version of s44. However, when he earlier stated his view of what the sentence should have been absent the plea of guilty he specified this as a sentence of six years and four months’ imprisonment, presumably, a reference to the total term of the sentence he had in mind. The Crown has made some criticism of him for this, suggesting that he applied the earlier version of s44 by setting the head sentence first. Given that the sentence as imposed was correctly done, in accordance with the current s44, I do not think this criticism can be sustained. Further, there is nothing in the current version of s44 that demands that the reasoning process follows a particular sequence. Provided a judge complies with the requirements of the section, it is not necessary that his or her thought processes commence with the non-parole period. However, there were other problems in the manner in which Division 1A was applied.
43 It is well established that a standard non-parole period fixed by s54B of the Sentencing Procedure Act is intended to apply to a conviction after trial, and not to a conviction entered pursuant to a plea of guilty: R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period fixed for offences against s96 was therefore not strictly applicable in this case. That, however, does not render the standard non-parole period entirely irrelevant. A standard non-parole period stands as a benchmark, reference point, sounding board or guidepost: Way, para [122]. Here, his Honour expressly found that the offence was in the mid-range of objective seriousness. This meant that the standard non-parole period was of considerable significance. It does not mean that his Honour was obliged to impose it, even subject to the discount for the plea of guilty. He was entitled, if he determined there were reasons for doing so, to depart from that non-parole period. By statute he was required, if he were to do so, to state his reasons for doing so. He did not.
44 It is obvious that the plea of guilty is of itself sufficient reason to depart from the standard non-parole period. However, his Honour departed from the standard non-parole period in a significantly greater way than merely by the reduction of that period to account for the plea of guilty. Even allowing a 25% reduction would have resulted in a non-parole period of five years and three months. As I have made perfectly clear, the plea of guilty alone was sufficient reason to depart from the standard non-parole period. There is nothing in the legislation that requires, on a plea of guilty, a sentencing court to apply the standard non-parole period with no more than a mathematical adjustment to take account of the plea. Nevertheless, it would have been appropriate for his Honour to have explained the reasons for the very significant reduction he allowed.
45 In my opinion, there were good reasons sufficient to justify the departure. The difficulty is that we do not know what reasons activated his Honour. Error lies in the failure to explain the basis on which he took this course. However, s54B(5) makes it perfectly plain that an error of that kind does not invalidate a sentence.
(iv) the Henry guideline
46 This Court in Henry promulgated a guideline in respect to sentencing for offences of armed robbery. McLoughlin DCJ stated that, in sentencing the respondent, he had regard to that guideline. It sets out a profile of offences and offenders to which the guideline applies. The characteristics of offences and offenders to which the guideline applies are:
In respect of cases falling within this pattern, a (head) sentence of between four and five years was promulgated.
(i) the offence is committed by a young offender with little or no criminal history;
(ii) the offender is armed with weapon like a knife, capable of killing or inflicting serious injury;
(iii) there is a limited degree of planning;
(iv) there is limited, if any, violence but a real threat thereof;
(v) the victim is in a vulnerable position such as a shopkeeper or taxi driver;
(vi) a small amount is taken;
(vii) a plea of guilty is entered, the significance of which is limited by a strong Crown case.
47 In this case, the respondent was 22 years of age – barely the young offender contemplated in Henry; and he had a significant criminal history. The firearm was used and discharged with resultant injury. The offence was planned and organised and his Honour found that the respondent was its driving force. To the extent that this offence, and offender, falls outside the description in Henry, the departures are, generally, adverse to the respondent.
48 The circumstances, therefore, would suggest that, to the extent that the guideline in Henry applies, this offence would demand a sentence greater than the guideline of four to five years (head sentence) promulgated. Yet the sentence imposed upon the respondent fell squarely within that range.
49 Like all guidelines, Henry is to be applied flexibly, and in recognition of circumstances which would warrant a different approach. Just as there were circumstances that would have justified departure from the standard non-parole period, so there were circumstances that would have justified departure from what Henry would otherwise require. But the reasons that motivated the sentencing judge were not articulated. Alone, I would not regard this as sufficient to warrant a finding of error such as to warrant the intervention of this Court. Together with the other matters to which I have referred, it adds to the sense of unease about the sentencing process.
50 In my opinion error on the part of the sentencing judge has been established and this Court would be justified in interfering.
51 However, before it determines to do that, it is to be borne in mind that the Court retains a discretion in all Crown appeals, even where error has been demonstrated, to decline to intervene in appropriate circumstances.
52 The material tendered to this Court is available to be taken into account in the event that this Court proceeds to re-sentence, but also in relation to the exercise of the discretion to which I have referred. The material presented to this Court included records of the respondent’s time in custody. He has begun a full-time programme of education. The most recent report is that he is excelling and has just topped the class in maths by obtaining 100% in his last examination. He has repeatedly asked for alcohol and other drug education, although this has not always been made available to him. He is described as:
- “... polite, cooperative and respectful to staff ... very health conscious ...”.
53 In his own letter, in his mother’s evidence, and in the psychologist’s report it appears that his principal concern is his children. He expressed himself as being determined to have a better future than his past has been.
54 The principles applicable to Crown appeals are well known and require no restatement: see, for example, Everett v The Queen [1994] HCA 49; 181 CLR 295; R v Wall [2002] NSWCCA 42 at [70], per Wood CJ at CL.
55 In all the circumstances, and notwithstanding the errors that have been established, I would, in the exercise of the Court’s discretion, dismiss the Crown appeal.
56 ADAMS J: I agree with Simpson J.
57 HOEBEN J: I agree with Simpson J.
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