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62
Court of Criminal Appeal 24 April 2002

REGINA v SHARMA

[2002] NSWCCA 142

Also reported as (2002) 54 NSWLR 300
Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ARMED ROBBERY IN COMPANY PLEA OF GUILTY "TWO STAGE APPROACH" OBJECTIVE AND SUBJECTIVE CONSIDERATIONS

Citation: Regina v Sharma [2002] NSWCCA 142
Court: New South Wales Court of Criminal Appeal
Date: 24 April 2002
Judges: Spigelman CJ, Mason P, Barr J, Bell J, McClellan J

Background

The respondent pleaded guilty in the District Court to one charge of robbery in company under the Crimes Act 1900. The offence involved the respondent and a co-offender attending a motel and threatening the owner with a ten-inch knife, taking approximately $300 in cash. The respondent was arrested shortly after, found hiding in nearby bushland.

At sentencing, the respondent was one month shy of his twentieth birthday and had a limited prior criminal history. The sentencing judge imposed eighteen months imprisonment with a non-parole period of twelve months, after applying a 25% discount for the guilty plea and a further 50% discount for cooperation with authorities, including identifying the co-offender and undertaking to give evidence against him.

The Crown appealed, contending the sentence was manifestly inadequate given the combined effect of those discounts and the nature of the offending.

  • Whether the sentencing judge erred by treating the guilty plea as a separate sentencing element and explicitly quantifying it (the so-called "two-stage approach")
  • Whether the sentencing judge erred by taking into account the utilitarian value of the guilty plea, rather than limiting consideration to the subjective reflection of remorse or willingness to facilitate justice
  • Whether the decision in R v Thomson (2000) 49 NSWLR 383 should be overruled in light of the High Court's comments in Wong v The Queen [2001] HCA 64
  • Whether the sentence imposed was manifestly inadequate

Decision

On the two-stage approach and quantifying the plea discount: The Court of Criminal Appeal held that the sentencing judge did not err by identifying and quantifying the value of the guilty plea as a discrete sentencing step. The Court declined to overrule R v Thomson, finding that criticism of a "two-stage approach" expressed in the High Court's decision in Wong did not require that departure. R v Thomson remains the applicable authority in New South Wales.

On the utilitarian value of the plea: The Court held that the sentencing judge was entitled to take the utilitarian value of the plea into account. The High Court's decision in Cameron v The Queen [2002] HCA 6, which framed the relevant consideration as the offender's "willingness to facilitate the course of justice," does not in New South Wales operate to exclude objective or utilitarian considerations. Section 22 of the Crimes (Sentencing Procedure) Act 1999 has modified the common law in this respect, permitting courts to consider the practical benefit to the justice system of a timely guilty plea alongside any subjective factors.

On manifest inadequacy: Despite finding no error in the sentencing methodology, the Court determined that the combined discount of 62.5% for the plea and assistance was excessive. Taking account of the nature of the offending, the respondent's youth, his personal circumstances, and his cooperation, the Court concluded the end result was manifestly inadequate, particularly regarding the non-parole period. Spigelman CJ indicated that but for the plea and the promise of assistance, a sentence of four years would have been appropriate.

Orders Made

  • Crown appeal allowed
  • Sentence imposed by Woods DCJ quashed
  • Respondent sentenced to two years imprisonment with a non-parole period of eighteen months, after which the respondent is to be released to parole

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Thomson continues to govern sentencing for guilty pleas in New South Wales, notwithstanding the High Court's comments in Wong v The Queen. Sentencing judges may separately identify and quantify the value of a guilty plea.
  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999, New South Wales courts are not restricted to the subjective dimension of a guilty plea when determining any discount. The utilitarian value of the plea remains a legitimate and distinct consideration.
  • The decision in Cameron v The Queen did not alter the New South Wales position. The subjective "willingness to facilitate justice" rationale from that case operates alongside, not instead of, the objective utilitarian approach.
  • A combined discount of 62.5% for guilty plea and assistance was held to be excessive on the facts, even where the assistance was significant and the offender had personal hardship factors.
  • In dismissing both grounds of methodological error but allowing the appeal on manifest inadequacy, the Court reinforced that the cumulative effect of discounts remains subject to appellate review for overall proportionality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Criminal Appeal Act 1912 (NSW), s 5D
- Interpretation Act 1987 (NSW), s 34

Key Cases:
- R v Thomson (2000) 49 NSWLR 383
- Wong v The Queen [2001] HCA 64; 76 ALJR 79
- Cameron v The Queen [2002] HCA 6; 76 ALJR 382
- R v Simpson [2001] NSWCCA 534
- R v AEM Snr [2002] NSWCCA 58
- Siganto v The Queen (1998) 194 CLR 656
- AB v The Queen (1999) 198 CLR 111
- R v Place [2002] SASC 101
- R v Morton [1986] VR 863