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8
Court of Criminal Appeal 13 July 2001

R v Lo

[2001] NSWCCA 271

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCING PLEA OF GUILTY

Citation: R v Lo [2001] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 13 July 2001
Judge(s): Simpson J; Sperling J

Background

The applicant, a 19-year-old with a history of serious property offences beginning at age 15, was involved in a robbery at a credit union located within a hospital. He and two companions jumped the counter, demanded money, and terrorised a female employee to the point of hysteria. The group fled with only $4, but the incident was treated as a serious offence given its nature and the applicant's prior record.

The applicant was convicted in the District Court and sentenced to five years and ten months' imprisonment with a non-parole period of three years. He sought leave to appeal on the ground that the sentencing judge had applied an inadequate discount for his early guilty plea.

The sentencing judge had allowed a discount of only 10 percent for the utilitarian value of the plea, expressly reasoning that the Crown case was very strong and that the plea therefore had "little utilitarian value." That reasoning formed the central ground of the appeal.

  • Whether a discount of 10 percent, placed at the very bottom of the range established in R v Thomson and Houlton, was appropriate for an early guilty plea
  • Whether the strength of the Crown case may reduce the utilitarian value of a guilty plea for sentencing purposes
  • What the correct approach is to quantifying a discount where the prospective trial would have been short

Decision

The Court of Criminal Appeal found that the sentencing judge had made two related errors. First, fixing the discount at the lowest point in the range was wrong in circumstances where the plea was entered early, even though the prospective trial was only two to three days long. An allowance at the very bottom of the range was not appropriate for an early plea.

The second and more significant error was the sentencing judge's express finding that the strength of the Crown case diminished the utilitarian value of the plea. Both Simpson J and Sperling J held this was directly contrary to the principle stated by Spigelman CJ in Thomson and Houlton: the strength of the Crown case is relevant only to the assessment of contrition or remorse, not to the utilitarian value of a guilty plea. The utilitarian value derives from the savings of public time and expense that result from avoiding a trial, and those savings are not reduced simply because the Crown would likely have succeeded at trial.

Simpson J noted that the applicant was entitled to the maximum benefit attributable to the timing of his plea. Because the avoided trial would have been short, the utilitarian saving was modest, and a discount toward the upper end of the 10 to 25 percent range from Thomson and Houlton was not warranted. The Court assessed an appropriate discount of approximately 15 percent.

Sperling J, who wrote the primary judgment on resentencing, took a head sentence of six years (already adjusted for the applicant's youth), reduced by approximately 15 percent to arrive at five years. The non-parole period remained at three years, with special circumstances found given the need for supervised rehabilitation on release.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant sentenced to five years' imprisonment commencing 14 June 2000
  • Non-parole period of three years commencing 14 June 2000, expiring 13 June 2003

Key Takeaways

  • The strength of the Crown case does not diminish the utilitarian value of a guilty plea; it is relevant only to the assessment of an offender's contrition or remorse, as confirmed by the Court of Criminal Appeal following Thomson and Houlton
  • A discount fixed at the very bottom of the 10 to 25 percent range identified in Thomson and Houlton will be erroneous where the plea was entered early, even if the prospective trial would have been brief
  • Where an early plea is entered but the avoided trial would have been short, the appropriate discount falls somewhere between the floor and the ceiling of the Thomson and Houlton range; the Court assessed 15 percent as appropriate in these circumstances
  • A sentencing judge who conflates the strength of the Crown case with the utilitarian value of a plea misdirects the sentencing exercise, vitiating the sentence and requiring resentencing
  • Special circumstances justifying a reduced non-parole period may be found where there is a genuine need for an extended period of supervised rehabilitation following release

Legislation and Cases Referenced

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Winchester v The Queen (1992) 58 A Crim R 345
- R v Beavan (unreported, Court of Criminal Appeal, NSW, 22 August 1991)