Ristevski v R [2022] NSWCCA 38

Ristevski v R [2022] NSWCCA 38

The sentencing judge erred by treating remorse and contrition under the umbrella of the 25 percent discount for early guilty pleas and by not separately considering them as an unquantified mitigating factor. Grounds 2 and 3 failed because the sentence commencement approach was open and the issue of special circumstances was dealt with in substance. Despite the established error, no lesser sentence was warranted given the applicant's significant recidivism in similar offending, poor prospects of rehabilitation, high likelihood of reoffending, the seriousness and impact of the offences, and the need for punishment, deterrence, denunciation and community protection.

Jurisdiction
Australia
Judgment Date
16 March 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['larceny' 'dishonestly Obtain Property by Deception' 'early Guilty Plea Discount' 'remorse and Contrition' 'special Circumstances' 'sentence Commencement' 'recidivism']
['criminal Law' 'sentencing' 'criminal Appeals'] ['larceny' 'dishonestly Obtain Property by Deception' 'early Guilty Plea Discount' 'remorse and Contrition' 'special Circumstances' 'sentence Commencement' 'recidivism']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred in concluding that the 25 percent discount for the applicant's early guilty plea was warranted by reason of contrition, remorse and practical utility of the plea." "Whether the sentencing judge misunderstood Judge Haesler SC's approach in earlier proceedings and whether that misunderstanding infected the sentencing discretion." 'Whether the sentencing judge erred in failing to address the submission that a finding of special circumstances was appropriate.' 'Whether, after establishing error, a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912.']

Ratio Decidendi

The sentencing judge erred by treating remorse and contrition under the umbrella of the 25 percent discount for early guilty pleas and by not separately considering them as an unquantified mitigating factor. Grounds 2 and 3 failed because the sentence commencement approach was open and the issue of special circumstances was dealt with in substance. Despite the established error, no lesser sentence was warranted given the applicant's significant recidivism in similar offending, poor prospects of rehabilitation, high likelihood of reoffending, the seriousness and impact of the offences, and the need for punishment, deterrence, denunciation and community protection.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']