Citation: R v Plummer [2000] NSWCCA 363
Court: NSW Court of Criminal Appeal
Date: 12 September 2000
Judge(s): Fitzgerald JA, Smart AJ, Ireland AJ
Background
The appellant, Brett Francis Plummer, faced sentencing in the District Court on multiple offences: supplying a prohibited drug (heroin), escaping from lawful custody, and break, entering and stealing. He had pleaded guilty to the supply charge on 8 February 1999, the day his trial was listed to begin.
Prior to entering his plea, the appellant's legal representatives held discussions with the Crown and formed the view that the likely sentence would be approximately three years' imprisonment, backdated to the date of his recapture on 23 December 1997. The appellant maintained he only agreed to plead guilty on the basis that he would receive no more than three years in total, and that his solicitor had represented this as a "deal" struck with the prosecution. His solicitor disputed that account, stating he had given his best estimate of the likely outcome rather than any guarantee.
The District Court ultimately imposed sentences that significantly exceeded what the appellant's legal advisers had anticipated. The total structure resulted in the appellant facing a considerably longer period of incarceration than the three years he said he had been led to expect.
Legal Issues
- Whether the appellant should be granted leave to withdraw his guilty plea to the supply charge, on the basis that it was entered in reliance on a misrepresentation about the likely sentence
- Whether the sentences imposed by the District Court were excessive, particularly in light of the totality principle (the principle that the overall or combined effect of multiple sentences must not be disproportionately harsh)
- Whether the sentence structure required modification under the Crimes (Sentencing Procedure) Act 1999
Decision
The Court of Criminal Appeal refused leave to withdraw the guilty plea. The Court accepted the solicitor's account that he had provided his best estimate of the likely sentence rather than a guarantee, and that no agreement had been reached with the Crown or the sentencing judge about the length of sentence. A prediction that proved too optimistic does not, of itself, provide grounds to withdraw a plea.
On the sentence appeal, however, the Court reached a different conclusion. Applying the totality principle, the Court found that the cumulative effect of the sentences imposed by the District Court was excessive. Where multiple sentences are served consecutively, a court must step back and assess whether the overall sentence fairly reflects the totality of the offending. Here, it did not.
The Court also noted the trial judge was correct to find special circumstances justifying an extended additional term (the portion of the sentence served on parole or supervised release), given the appellant's significant rehabilitative needs, including addressing heroin dependency and chronic anxiety. Despite that finding, the overall length of the sentences warranted reduction.
Orders Made
- Leave to withdraw the guilty plea to the supply charge: refused
- Appeal against conviction: dismissed
- Leave to appeal against sentence: granted
- On escaping from lawful custody: fixed term of 18 months commencing 18 October 1998, ending 17 April 2000
- On supplying a prohibited drug (taking into account three further offences): five years' imprisonment commencing 18 April 2000, with a non-parole period of two years ending 17 April 2002
- On break, entering and stealing: fixed term of 18 months commencing 18 April 2000, to be served concurrently with the supply sentence
Key Takeaways
- A guilty plea will not be set aside merely because the sentence ultimately imposed is longer than the estimate given by legal advisers, provided no actual guarantee or misrepresentation as to the outcome was made.
- Where multiple consecutive sentences produce an overall term that is disproportionate to the totality of the offending, the totality principle requires the court to reduce individual sentences to bring the combined effect within appropriate bounds.
- Disputes between an appellant and a former solicitor about what was said during plea negotiations will generally be resolved on the available evidence, and bare assertions by an appellant will not automatically be preferred.
- In dismissing the conviction appeal while granting sentence relief, the Court of Criminal Appeal demonstrated that the two grounds are assessed independently: a valid plea of guilty can coexist with an excessive sentence.
- Fixed terms were imposed across several of the restructured sentences in recognition of the cumulative sentencing framework, reflecting the court's careful calibration of commencement and expiry dates across the multiple offences.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Liberti (1991) 55 A Crim R 120
- R v Boag (1994) 73 A Crim R 35