R v Ribeiro - [2005] NSWCCA 10

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ribeiro [2005] NSWCCA 10

FILE NUMBER(S):
2004/2452

HEARING DATE(S): 1 February 2005

JUDGMENT DATE: 01/02/2005

PARTIES:
Regina v Helton Rodregeous Ribeiro

JUDGMENT OF: Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0960

LOWER COURT JUDICIAL OFFICER: Blanch DCJ

COUNSEL:
G.I.O. Rowling (Crown)
M. Paisch (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Nedim Lawyers (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MULTIPLE OFFENCES
DISCOUNTS FOR EARLY PLEAS AND ASSISTANCE TO AUTHORITIES
NO ERROR IN ASSESSMENT BY SENTENCING JUDGE

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2452
GROVE J
JAMES J
Tuesday 1 February 2005

REGINA v HELTON RODREGEOUS RIBEIRO

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Chief Judge Blanch in the District Court on 30 April 2004.
On that occasion, the applicant appeared before his Honour and pleaded guilty to four counts in an indictment then presented. He also asked for two offences to be taken into account on a form 1.
As his Honour found, a plea of guilty had been offered at an early stage and the presentation of the indictment was required by technical irregularities and no delay was attributable to the applicant.
The first count to which the applicant pleaded guilty charged aggravated breaking, entering and stealing for which the prescribed maximum penalty is imprisonment for 20 years. The second count, receiving stolen property, has a prescribed maximum penalty of imprisonment for 12 years. The third count, receiving stolen property, has a maximum prescribed penalty of imprisonment for ten years, and a fourth count, possessing a prohibited weapon, for which a maximum penalty of 14 years imprisonment was applicable.
The offences on the form 1 related to possessing housebreaking implements and possessing a prohibited weapon. His Honour imposed sentences on each of the four counts.
On the second count he imposed imprisonment for a fixed term of two years and on the third and fourth counts each terms of imprisonment for fixed terms of 12 months. On the first count the applicant was sentenced to imprisonment for five years with a non parole period of three years. His Honour ordered that all sentences be served concurrently. Hence it follows that the effective sentence imposed upon the applicant was imprisonment for five years with a non parole period of three years.
In helpful written submissions which have been provided to the Court by both parties, counsel for the applicant observed that the impositions may not reflect precisely the approach indicated by the High Court in Pearce v The Queen 1998 194 CLR 610. However, it does not seem to me that that is a matter of any significance to the outcome of this appeal and it suffices to look at the effective sentence in the context of the facts found by his Honour and the submissions made on behalf of the applicant.
I have said that the first count was by far the most serious. His Honour sketched those facts which were that on 14 May 2001 a woman aged in early middle years was in her home in a southern Sydney suburb going to the garage in order to leave in her car. She was confronted by the applicant who was wearing a balaclava. There obviously followed a physical struggle between them, the details of which are set out in his Honour's remarks on sentence and which I need not for present purposes repeat in full.
Demands were made by the applicant that the woman part with the jewellery which she was wearing. She was then forced into her house and made to disclose the whereabouts of other jewellery. Entry into the house caused an alarm to be triggered and the woman's condition was such that she was unable, due to her quivering and shaking, to switch it off. In fact, the applicant only departed the scene when the victim was able to press a panic alarm and he fled with a large amount of jewellery.
One incident in the course of the struggle involved the victim scratching the applicant's face. Showing what I would take to be some sensitivity to the ways in which he might be detected, he directed the victim to wash her hands. Prudently, she only lightly rinsed them and, as his Honour found, the applicant was able to be identified by DNA testing of samples from under the victim's fingernails.
The value of the jewellery was considerable. It is of interest to observe that the applicant, who gave evidence in the sentencing proceedings, was taken to the particular items about which he said he remembered very little. However, he was asked what he did with all that jewellery and said that he gave it to someone to sell. He was not sure how much he got for it, but he suggested $10,000 or $9,000.
Given the market into which he must have been seeking to dispose of this stolen jewellery, it is obvious that the material stolen was very valuable indeed. It may also be noted in passing that the applicant was unable to identify the purchaser of the goods. He said it was a person he didn't know well, whom he had known through other associates and there the matter was left.
The other offences, as I have said, are not as serious, but that is not to say that they were not significant.
The second count related to being in possession of a motorcar valued at some $35,000. When the applicant's home was searched pursuant to a warrant there were discovered a valuable pen and men's watch, which were able to be identified as being property stolen from a home in a suburb other than that relevant to the first count.
The fourth count referring to a weapon relates to a flick knife which was found in the bedroom of the home. It might also be observed that the charge concerning a weapon taken into account on the form 1 involved an expandable telescopic baton of a type sometimes used by law enforcement agents which was found in the applicant's home.
It was this accumulation of facts which were before his Honour and which required the imposition of an appropriate sentence.
His Honour approached the matter, as disclosed in his remarks, by observing the facts which I have mentioned and thereafter he turned to subjective matters concerning the applicant and to two particular matters which were obviously of advantage to the applicant in the matter of sentence.
The first of these was a reflection of his early pleas of guilty and the second were matters which can conveniently be referred to as matters pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999.
The way his Honour assessed the matter and reached the sentences which I have indicated was to conclude, as he said, that an appropriate starting point was ten years imprisonment. He then allowed a discount of some two years to reflect the early pleas of guilty and a further discount of three years for what I have described as the s 23 matters.
In submissions today, counsel for the applicant has drawn attention to a remark of his Honour's immediately preceding the assessment of ten years imprisonment as a starting point. His Honour said: “It comes down then to a question of attempting to assess the general criminality involved in these offences and imposing an appropriate sentence with the appropriate discounts.”
It was submitted that it can be inferred from this that his Honour had erroneously failed to take into account, in the overall assessment of his starting point, subjective matters other than the two discrete matters which he had dealt with when he reached the figure of ten years.
That submission takes his Honour's remark quite out of context. First of all, his Honour, a most experienced sentencing Judge, obviously was not excluding subjective matters when he referred to an “appropriate” sentence. Even more clearly, if one goes back to see what his Honour was talking about, one can observe that he had recited matters relevant to the subjective situation of the applicant commencing with his birth, his problems, his family problems, psychological matters and so forth.
I would reject the submission that his Honour's approach to assessing the period of ten years imprisonment was tainted by error.
The sole ground of appeal, as expressed, was that the assessment of ten years was manifestly excessive. In the course of argument, however, submissions were developed indicating that the accumulated discounts which I have mentioned, being two years for the pleas of guilty and three years for the s 23 matters, were insufficient in all the circumstances.
It can be recorded that the latter circumstances were made known to his Honour in the usual procedure and documentation in relation thereto has been placed in a sealed envelope. That envelope has been opened by this Court and the content read by the members of the Bench and counsel appearing for the applicant and for the Crown.
It suffices, in my view, to observe that the additional discount of three years is well within the range of the sound exercise of his Honour's discretion in reflecting those matters. I am also of a view that no error is manifest in his Honour's initial discount from the period of ten years of two years representing the early pleas of guilty.
The period of ten years, as representative of an appropriate sentence for the criminality of this particular offender, does not, in my view, manifest any error.
Some particular attention was directed by counsel to remarks by Hodgson JA and Simpson J, respectively, in the appeal of Regina v NP [2003] NSWCCA 195, in particular, in submitting that the overall discount for the two discrete matters of the plea of guilty and the s 23 assistance should be 60 per cent rather than 50 per cent. Our attention was directed to the remark of Simpson J:
“The result of the rigorous application of what had become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle.”
I have no quarrel with her Honour's remark, but the implication of the submission of the applicant that provocation of a sharp intake of breath is an objective and, somehow or other, a touchstone for seeing whether or not sufficient discount has been made, is a proposition which I can not endorse.
In my view, no error has been shown to have been committed by his Honour and the application for leave to appeal should be granted, but the appeal dismissed
JAMES J: I agree with the judgment of the presiding Judge and with the orders proposed by his Honour
GROVE J: The orders of the Court therefore will be as I have proposed.

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LAST UPDATED: 07/02/2005