Sentence Reduced Due to Multiple Errors by Judge

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By Paul Gregoire and Ugur Nedim

At around 12.30 pm on 23 March 2016, three men in a blue Toyota Corolla pulled up outside of a house in the Sydney suburb of Wakeley. William Er got out of the car, walked over to the residence and knocked on the door.

Having ascertained there was no one home, Mr Er returned to the car and got into the back seat. The vehicle was then reversed down the driveway beside the house. William Aslett and Michael Huynh got out of the car, jumped the fence, forced the backdoor to the house open and entered.

An hour had passed by the time the two robbers emerged from the residence. They’d stolen $100,000, four gold bracelets, five gold necklaces, a gold ring, 2,000 Euros, around $100 in US cash and two passports belonging to the couple that lived there.

The vehicle was driven away by 19-year-old Er. Images of the incident were captured by CCTV cameras installed at a neighbouring property. And police arrested the trio one-by-one over the following a week.

The penalties that applied

Seventeen days before his trial, Mr Er pleaded guilty in the NSW District Court to one count of break, enter and steal, contrary to section 112(1)(a) of the Crimes Act 1900. The maximum penalty for this offence is 14 years behind bars.

On 17 November last year, the offender was also sentenced for one count of driving while disqualified pursuant to section 54(1)(a) of the Road Transport Act 2013.

The maximum penalty for a first offence of this kind is 6 months gaol time and/or a fine of $3,300. For someone convicted of this crime for a second or subsequent time the maximum penalty is 12 months behind bars and/or a fine of $5,500.

In October last year, the NSW government passed the Road Transport (Driver Licence Disqualification) Act 2017, which effectively lowered the maximum penalty for driving while disqualified down from the previous 18 months for a first offence and 2 years for a second.

The legislation also inserted new section 205A into the Road Transport Act, which stipulates that the minimum driver disqualification period for driving while disqualified is 6 months, while the default disqualification period is 12 months. Previously the default disqualification had been 2 years.

Erroneous sentencing proceedings

NSW District Court Judge James Bennett noted that Mr Er was disqualified from driving at the time of the robbery and it wasn’t the first time he’d been convicted of this offence. He also said the offender had a “long list of previous offences”, including three break and enter convictions.

His Honour found that Mr Er’s level of criminality was the same as his co-offenders, as even though he didn’t enter the house, he was an integral part of “a joint criminal enterprise”.

And due to their comparable criminal backgrounds, he said he’d impose a similar sentence as Aslett had already received at a trial in the District Court in April last year.

For the break and enter offence, Judge Bennett sentenced Mr Er to 5 years imprisonment, with a non-parole period of 2 years and 6 months. This reflected a 10 percent discount for the utilitarian value of his early guilty plea.

As for the crime of driving while disqualified, Mr Er was sentenced to 18 months on the inside. This was after a 25 percent guilty plea discount had been applied to the sentence. And his Honour also disqualified Er from driving for 2 years.

Together, this meant that Mr Er was given an aggregate sentence of 5 years and 6 months gaol time, with a non-parole period of 3 years.

Misapprehending the co-offender’s sentence

Mr Er appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 26 November this year. He did so on five grounds. The first was that the judge made an error in the sentence he handed down for stealing after stating it would be similar to the one given to his accomplice Aslett.

As NSWCCA Justice Clifton Hoeben pointed out, Aslett received a 3 year sentence with a non-parole period of 2 years, which was much shorter than the sentence imposed on Mr Er. And this showed a lack of consistency with what the sentencing judge said his intention was.

“For reasons that are not apparent on the face of the sentence judgment” Judge Bennett “must have misapprehended the sentence imposed upon Aslett”, his Honour said. And due to this error having been established, the NSWCCA had to resentence for the break and enter offence.

The wrong maximum penalty

Another ground of appeal was that the sentencing judge had made an error, as despite recent amendments that had been made to the Road Transport Act, Judge Bennett stated the maximum penalty for driving while disqualified was still 2 years and his sentence reflected this.

Although Mr Er’s crime was committed prior to the lowering of the maximum penalty, section 19(2) of the Crimes (Sentencing Procedure) Act 1999 stipulates that a reduction in penalty applies to offences carried out prior to the change.

The sentencing judge handed down a sentence that was 6 months longer than the new maximum penalty and this was after a 25 percent discount had been applied. And therefore, the court had to resentence for the driving offence as well.

The final appeal grounds

Justice Hoeben stated that further grounds of appeal that dealt with the sentence being manifestly excessive and the judge failing to take into account the principle of totality no longer had to be considered since the other grounds had been made out.

And the final ground of appeal that dealt with parity in sentencing would be considered during the resentencing process. The principle of parity requires that like cases be treated alike, and different cases be treated differently.

The principle should avoid substantial disparity in the sentences of co-offenders involved in the same criminal activity where they have similar subjective factors, regardless of the charges laid against them.

A question of parity

Although all three offenders were engaged in a joint criminal enterprise, Justice Hoeben stated, the two co-offenders actually entered the house, while Mr Er remained in the car. And for that reason, Er’s involvement was somewhat more passive.

Other matters that had to be considered on resentencing were that Mr Er was much younger than his co-offenders. And while Aslett’s prior offending was worse than Er’s, Mr Huynh’s was not as serious.

So, therefore, his Honour found that Mr Er’s sentence should sit in between those of his co-offenders.

The orders of the appeals court

On 7 December this year, Justice Hoeben ordered that the appeal be granted and the November 2017 District Court sentence be quashed.

For the driving while disqualified offence, 9 months prison time was imposed. For the break and enter, Mr Er was given 3 years inside, with a non-parole period of 1 year and 8 months. This resulted in an overall sentence of 3 years and 4 months, with a non-parole period of 2 years.

And the court ruled that Mr Er was disqualified from holding a driver’s licence for 12 months.

NSWCCA Justices Geoffrey Bellew and Stephen Campbell agreed with these orders.

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