Pehar v R [2020] NSWCCA 118
Pehar v R [2020] NSWCCA 118 · Read the judgment on AustLII
Catchwords: Aggravating factors on sentence – ‘in company’ – aggravation not established by mere presence
The Court of Criminal Appeal (‘CCA’) has confirmed that an offence is not aggravated merely because another person is present ‘in company’ with the offender. For the statutory aggravating factor to be engaged, there must be a principled explanation as to why the presence of another person renders the offence more serious.
A jury found the applicant guilty of nine variations on the theme of larceny and one count of destroy / damage property. All the offences centred around a single industrial complex and spanned a period of nine days. He stole CCTV cameras from outside various commercial units in the complex (each camera appears to be valued at between $350-800, which might explain the motivation) and took a van, and then in one night destroyed a CCTV camera, stole another van, and in company with one other person used that stolen van to break into an industrial unit which sold CCTV cameras and hard drives with a view to stealing their wares. The latter offence was part of an offence of aggravated break, enter and steal (in company); the appeal related to every offence except that break and enter offence.
Ironically given the items stolen, most of the evidence relevant to the appeal was itself captured on CCTV. Seven of the 10 incidents involved footage showing the presence variously of either one or two other offenders. Relevantly for present purposes, the sentencing judge found that all the offences had been carried out in company. The applicant was sentenced to imprisonment for 6 years, with a non-parole period of 3 years. He appealed upon the sole ground that the sentencing judge had failed to determine the extent to which, if at all, the counts (other than the aggravated break and enter) had been aggravated by the fact they were committed in company.
The Crown conceded that there had been an error and the CCA (Fullerton J, with whom Meagher JA and Wilson J agreed) accepted that concession. The agreed facts did not disclose the extent to which, if at all, the applicant’s culpability for the relevant counts was aggravated by being in company (at [27]). It was incumbent on the sentencing judge to clearly identify the relevant factors bearing upon the indicative and aggregate sentences (at [30]). Here, the CCA confirmed previous authorities to the effect that the mere fact that offences occur in company, whilst capable of being an aggravating factor, might or might not be in fact aggravating. The sentencing judge must still determine whether, in all the circumstances, the offence is made more culpable than otherwise, as where two robbers overawe a victim (at [44], quoting Gore v R; Hunter v R (2010) 208 A Crim R 353). They also confirmed other authority to the effect that the mere fact that two persons are in the company of each other at the time of the offending is not, of itself, a sufficient basis upon which to conclude that an offence is aggravated within the meaning of s21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (at [47], quoting R v Pham [2018] NSWSC 822). In this case, at no point did the sentencing judge consider the relevance of the fact that the offences had been in company with others. Had he been taken to the relevant authorities, and applied a principled approach to whether the ‘in company’ aggravating feature was engaged, it would not have been open to him to find that all the offences were relevantly aggravated by the presence of one or two other men (at [48]).
As an example of how the principle should be applied, the CCA, having found error, moved to resentence the applicant. The CCA did not accept that there was sufficient factual foundation to find that the driving away of the vehicle, or the destruction of property as in any material sense assisted or encouraged by the presence of one or more other offenders. The taking of the motor vehicle appears to have been opportunistic, and the damage to property was either opportunistic or incidental to other offending (at [50]). In relation to other offences, it cannot be overlooked that the offences were committed in an industrial complex when no tenants or owners were present. Although the absence of people was a factor in the planning (which is otherwise relevant in the sentencing exercise), it also operates to ameliorate one of the central factors of the ‘in company’ factor of statutory aggravation in that no member of the public was overborne by the presence of multiple offenders or subject to any threat of violence (at [51] and [53]). The applicant’s appeal was upheld, and he was resentenced to 4 years and 6 months with a non-parole period of 2 years and 3 months.