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16
Court of Criminal Appeal 27 June 2001

Regina v Carter

[2001] NSWCCA 245

Theft & property
SENTENCE DISCOUNT FOR PLEA OF GUILTY TOTALITY APPLICATION OF PEARCE V THE QUEEN

Citation: Regina v Carter [2001] NSWCCA 245
Court: New South Wales Court of Criminal Appeal
Date: 27 June 2001
Judge(s): Howie J; Barr J (agreeing)

Background

The applicant pleaded guilty to two counts of break, enter and steal contrary to s 112 of the Crimes Act 1900, each carrying a maximum penalty of 14 years imprisonment. The first offence involved a residential burglary in Glebe in May 2000; the second, committed roughly two weeks later in Paddington, involved a more serious home invasion during which the homeowner returned and was punched by the applicant's co-offender. The applicant was on parole at the time of both offences and had a history of similar convictions linked to heroin addiction.

At the District Court, Acting Judge Nash sentenced the applicant to 5 years with a 3-year non-parole period on the second count and a fixed term of 2 years and 7 months on the first count, both dates running from 20 May 2000. The sentencing judge applied a discount of only 15 per cent for the applicant's early guilty pleas and, in determining the sentence for the second count, took into account the overall criminality across both offences rather than treating each separately.

The applicant sought leave to appeal on the grounds that the discount for his early pleas was inadequate and that the total sentence was manifestly excessive.

  • Whether the sentencing judge applied the correct principles from R v Thompson and Houlton (2000) 49 NSWLR 383 when assessing the discount for an early guilty plea, specifically whether the strength of the Crown case was a relevant consideration
  • Whether the sentencing judge misapplied the totality principle by factoring the overall criminality of both offences into the sentence for one count, rather than sentencing for each offence separately and then adjusting for totality

Decision

On the guilty plea discount, Howie J found the sentencing judge had erred by apparently treating the strength of the Crown case as a factor in limiting the utilitarian discount. The Court clarified that Thompson and Houlton establishes two factors relevant to the utilitarian value of a plea: the timing of the plea (earlier being more valuable) and the complexity of the evidence needed to prove the charge (greater complexity meaning greater utilitarian benefit). The strength of the Crown case is simply not a relevant consideration when assessing the purely utilitarian component of the discount.

The Court noted that the strength of the Crown case may be relevant to a separate question: whether the plea demonstrates genuine contrition and therefore warrants an additional discount beyond the utilitarian component. These two elements must be assessed distinctly.

On totality, Howie J found the sentencing judge had fallen into a further error by building the combined criminality of both offences into the sentence for the second count, rather than imposing the appropriate sentence for each offence individually and then addressing totality through the ordering of cumulative or concurrent terms. That approach is contrary to the method required by Pearce v The Queen (1998) 194 CLR 610. Given the offences were part of the same course of conduct, arising from the same circumstances (heroin addiction) and occurring within two weeks of each other, the Court considered that the second offence's sentence could accommodate the overall criminality without accumulation. The sentence on the second count was found to be manifestly excessive.

The applicant was entitled to a 25 per cent utilitarian discount for his early pleas, plus a further moderate discount for assistance provided and more difficult prison conditions.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentences imposed by Acting Judge Nash quashed
  • On the first count: fixed term of 2 years imprisonment, dating from 20 May 2000, expiring 19 May 2002
  • On the second count: 4 years imprisonment with a non-parole period of 2 years and 3 months, dating from 20 May 2000, with eligibility for parole on 19 August 2002

Key Takeaways

  • Under the principles in R v Thompson and Houlton, the strength of the Crown case is not a relevant factor when calculating the utilitarian value of a guilty plea; it is relevant only to the separate question of whether the plea demonstrates contrition warranting an additional discount.
  • The two factors that bear on the utilitarian component of a plea discount are the timing of the plea and the complexity of the evidence required to prove the charge.
  • Sentencing courts must impose an appropriate sentence for each offence individually and then address totality by deciding whether sentences should be cumulative or concurrent; it is an error to inflate the sentence on one count by folding the overall criminality of multiple offences into it.
  • Where offences form part of a single course of conduct, arising from the same circumstances and occurring within a short period, the Court of Criminal Appeal found accumulation was not warranted and the second and more serious offence's sentence could encompass the overall criminality.
  • In re-sentencing, the Court confirmed that both general and specific deterrence remained significant considerations for an offender with a persistent record of similar offending, consistent with Veen v The Queen (No 2) (1988) 164 CLR 465.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112 (break, enter and steal)
- Justices Act 1902 (NSW), s 51A (committal for sentence)

Cases
- R v Thompson and Houlton (2000) 49 NSWLR 383
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465