AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 28 April 2003

R v Daley

[2003] NSWCCA 109

Sexual offencesTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING PLEAS OF GUILTY AFTER LENGTHY VOIR DIRE APPLICATION TO WITHDRAW PLEAS CHALLENGE TO EVIDENCE ON SENTENCE UTILITARIAN VALUE OF GUILTY PLEAS

Citation: R v Daley [2003] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 28 April 2003
Judges: Spigelman CJ, Dunford J, Hidden J

Background

The applicant pleaded guilty to two counts of aggravated sexual assault, two counts of armed robbery, and two counts of detaining for advantage. Additional offences of the same character were taken into account on a Form 1 (a procedural mechanism allowing a sentencing court to consider further charges without convicting on them). The total effective sentence imposed at first instance by Simpson J in the Supreme Court was 22 years' imprisonment with a non-parole period of 16 and a half years.

The applicant's pleas came only after a two-week voir dire challenging the admissibility of almost the entire Crown case. Several complainants were required to give evidence during that process. After the pleas were entered, the applicant attempted to withdraw them, gave evidence denying his involvement, and continued to contest the Crown's DNA evidence at the sentencing hearing. Simpson J refused the application to withdraw the pleas and subsequently declined to apply any discount for the utilitarian value of those pleas.

The sole ground of appeal to the Court of Criminal Appeal was that Simpson J erred in withholding any discount for the utilitarian value of the guilty pleas.

  • Whether a sentencing court is required to apply a discount for the utilitarian value of guilty pleas in all cases where a plea has been entered
  • Whether the conduct of the applicant before and after entering his pleas was relevant to assessing the utilitarian value and other mitigating aspects of those pleas
  • Whether the sentence imposed should be reduced, either on the basis of the plea discount issue or on account of fresh evidence placed before the Court of Criminal Appeal

Decision

The majority (Spigelman CJ and Dunford J) dismissed the appeal. Dunford J noted that section 22(1) of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to take the plea and its timing into account, but does not mandate that a lesser sentence be imposed in every case. The guideline judgment in R v Thomson and Houlton had already recognised that some cases warrant no discount at all.

Simpson J's reasoning was upheld. The pleas were entered late, following a protracted voir dire that itself required complainants to give evidence. The applicant then sought to withdraw the pleas, denied guilt under oath, and required witnesses to attend to challenge DNA evidence at sentence. This history, her Honour had found, demonstrated no genuine willingness to facilitate the course of justice, no acceptance of responsibility, and no remorse. In those circumstances, withholding any discount was open.

Fresh affidavit material was placed before the Court of Criminal Appeal going to the applicant's personal background. Dunford J found it unnecessary to resolve the procedural question of when such material should be considered under section 6(3) of the Criminal Appeal Act 1912, because even taking the material into account, it did not justify disturbing the sentence. The matters described might partly explain the applicant's conduct but could not excuse it, particularly the use of knives against strangers.

Hidden J dissented. His Honour accepted that the difficult history significantly diminished the value of the pleas, but concluded the applicant was still entitled to some limited benefit. The pleas had averted a full trial in which each complainant would have had to give detailed evidence of a distressing nature. On that basis alone, Hidden J considered a somewhat lesser sentence was warranted and would have reduced the head sentence on count 4 to 16 years with an 11-year non-parole period, producing a total effective sentence of 20 years with a 15-year non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed (by majority)

Key Takeaways

  • Under section 22(1) of the Crimes (Sentencing Procedure) Act 1999, a court must consider the fact of a guilty plea and its timing but is not obliged to impose a lesser sentence in every case.
  • A plea of guilty does not automatically attract a utilitarian discount where the conduct surrounding the plea negates any genuine facilitation of justice, acceptance of responsibility, or remorse.
  • Post-plea conduct, including an attempt to withdraw pleas, sworn denials of guilt, and continued challenges to the Crown evidence at sentence, is relevant to assessing the weight to be given to the plea as a mitigating factor.
  • The Court of Criminal Appeal confirmed the approach in R v Thomson and Houlton that, while the utilitarian value of a plea is generally assessed in the range of 20 to 25 per cent, there are cases in which no discount is appropriate.
  • A 2-1 split in the Court of Criminal Appeal illustrates that the point at which a plea's residual utilitarian value falls to zero involves a degree of judgment: the dissenting judge took the view that even a seriously compromised plea retains some value if it spares complainants from giving trial evidence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22(1), 24
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Cameron v The Queen [2002] HCA 6, 76 ALJR 382
- R v Sharma [2002] NSWCCA 142, 54 NSWLR 300
- R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383