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Court of Criminal Appeal 16 April 2003

REGINA v JELISAVAC

[2003] NSWCCA 107

Fraud & dishonestyTheft & property
SENTENCE APPEAL PLEA OF GUILTY UTILITARIAN VALUE EFFECT OF EVIDENCE OF CONTRITION

Citation: Regina v Jelisavac [2003] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 16 April 2003
Judge(s): Adams J; Smart AJ

Background

The applicant, a young man approaching his 24th birthday at the time of sentencing, pleaded guilty in the Local Court to a range of property offences. These included obtaining money by deception, multiple counts of breaking and entering with and without aggravation, and breaking and entering with intent. He also requested 16 further offences be taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate convictions). The offending spanned from late 1998 to April 2001.

At sentencing in the District Court, the judge recorded a deeply troubled background: a violent and unstable childhood, removal by the Department of Community Services, placement in foster care, and drug use from age 10. The sentencing judge imposed a total effective sentence of seven and a half years with a non-parole period of four and a half years.

The applicant sought leave to appeal against the sentences, arguing that the non-parole period was excessive. The Court of Criminal Appeal announced its decision at the hearing in December 2002 and delivered its reasons in April 2003.

  • Whether the sentencing judge gave adequate weight to the utilitarian value of the applicant's guilty pleas across multiple counts
  • Whether, having accounted for the utilitarian value of the pleas, the judge was also required to separately allow for the applicant's remorse and contrition
  • Whether the combined discount of 25 percent for both plea and contrition was sufficient, or whether they should have been treated as distinct considerations warranting separate allowances
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between head sentence and non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court granted leave to appeal and allowed the appeal in part, reducing the non-parole period by 12 months while leaving the head sentence unchanged. The court found that the utilitarian value of the pleas was substantial. Several counts had no evidence against the applicant beyond his own admissions, meaning the pleas provided genuine practical benefit to the administration of justice and warranted a discount at the top of the range established in The Queen v Thomson and Houlton, being in the order of 25 percent.

The critical error identified was that the sentencing judge had applied a single combined discount of 25 percent for both the utilitarian value of the plea and the applicant's remorse and contrition. Adams J held that, once the utilitarian value of the plea had consumed that full range, no separate allowance had been made for contrition as a distinct sentencing consideration. Proper sentencing principles required that contrition be separately recognised.

Adams J also addressed the applicant's background, noting a meaningful distinction between an adult who chooses to use and becomes addicted to illicit drugs, and a child who becomes addicted due to the environment in which they are placed. While personal responsibility for offending remains a relevant sentencing factor regardless of addiction, the court observed that this distinction should inform, rather than be disregarded in, the sentencing exercise.

The Court agreed with the sentencing judge that special circumstances existed, justifying departure from the standard statutory formula for calculating the non-parole period. The applicant's ongoing rehabilitation and participation in courses aimed at future employment were also noted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed as to sentences on Counts 3, 8 and 9; those sentences quashed
  • Count 3: 7 years 6 months imprisonment commencing 2 August 2001, non-parole period of 3 years 6 months expiring 1 February 2005
  • Counts 8 and 9: fixed term of 2 years 3 months commencing 2 November 2002, expiring 1 February 2005
  • Count 4: sentence quashed and substituted with a fixed term of 2 years 6 months commencing 2 August 2002, expiring 1 February 2005
  • The intended effect of the orders was that the head sentence remained the same but the non-parole period was reduced by one year

Key Takeaways

  • The utilitarian value of a guilty plea and an offender's remorse or contrition are distinct sentencing considerations; where the plea discount exhausts the applicable range, a separate allowance for genuine contrition may still be warranted
  • A combined discount that conflates both factors without separately accounting for each may constitute a sentencing error capable of correction on appeal
  • The Court of Criminal Appeal confirmed that the applicable range for the utilitarian value of a guilty plea is that established in The Queen v Thomson and Houlton, with the top of that range being around 25 percent
  • Where a child becomes addicted to drugs as a result of their environment before reaching maturity, this may be a relevant consideration that distinguishes their circumstances from adult-onset addiction, though personal responsibility for offending is not diminished
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may justify departing from the standard ratio between head sentence and non-parole period, particularly where extended supervision on parole would benefit an offender's rehabilitation

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- The Queen v Thomson and Houlton [2000] 49 NSWLR 383; 115 A Crim R 104