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Court of Criminal Appeal 7 October 2003

R v Scott

[2003] NSWCCA 286

Assault & violence
CRIMINAL LAW AND PROCEDURE

Citation: R v Scott [2003] NSWCCA 286
Court: New South Wales Court of Criminal Appeal
Date: 7 October 2003
Judge(s): Tobias JA, Howie J, Shaw J

Background

The applicant, a 29-year-old man with no prior criminal history, pleaded guilty in the District Court to wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900. The charge arose from a violent knife attack in Double Bay in March 2001, during which the applicant returned to his apartment mid-altercation, armed himself with two kitchen knives, and repeatedly stabbed the victim, causing multiple wounds to the torso and upper body. The victim required abdominal surgery and intensive care. The sentencing judge described the offence as falling within the upper range of seriousness for its type.

The applicant had pleaded not guilty to the more serious charge of causing grievous bodily harm with intent to murder, and the Crown accepted his plea to the lesser s 33 offence in full satisfaction of the indictment. Judge Keleman sentenced the applicant to seven years imprisonment with a non-parole period of four years.

The applicant sought leave to appeal on a single ground: that the sentencing judge had erred in assessing the appropriate discount for his guilty plea and contrition.

  • Whether the sentencing judge applied an insufficient or erroneous discount for the applicant's guilty plea to a lesser offence
  • Whether contrition and remorse demonstrated prior to the plea should have been weighed separately from, or in addition to, the discount attributed to the plea itself
  • Whether the overall sentence of seven years was manifestly excessive given the applicant's favourable subjective circumstances

Decision

Howie J (with whom Tobias JA and Shaw J agreed) dismissed the appeal. His Honour found no error in the sentencing judge's treatment of the plea or the applicant's contrition. The plea was first offered nine months after the offence and concerned only a lesser charge, not the principal charge on the indictment. Consistent with the guideline in R v Thomson and Houlton and the subsequent decision in R v Dib, a discount of less than 25% can be appropriate where a plea to a lesser charge is entered a significant time after the offence, even if it was made at the earliest opportunity in respect of that charge.

The Court rejected the suggestion that the sentencing judge had treated the 25% guideline as a ceiling that absorbed all evidence of remorse. His Honour observed that the applicant's most significant conduct demonstrating contrition occurred before the plea was offered, and there was nothing in the judgment to indicate this material had been overlooked. The sentencing judge expressly acknowledged the applicant's rehabilitation, genuine remorse, and favourable personal circumstances.

The Court also considered whether, even assuming error had been demonstrated, intervention would have been warranted. Given the very high objective seriousness of the offence, a head sentence of seven years against a maximum of 25 years reflected that the sentencing judge had given full weight to the subjective case. The non-parole period of four years was described as the very least that could have been imposed. Under s 6(3) of the Criminal Appeal Act 1912, no lesser sentence was warranted and the appeal was required to fail.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A discount of less than 25% for a guilty plea can be appropriate where the plea relates to a lesser charge accepted long after the offence, even if entered at the earliest opportunity in respect of that charge.
  • The sentencing range referred to in the guideline judgment (R v Thomson and Houlton) creates no presumption of, or entitlement to, a particular discount; it remains a guideline only.
  • Where contrition and remorse are demonstrated principally through conduct prior to the plea, the sentencing court is not required to treat that remorse as distinct from, or additional to, the plea discount.
  • In dismissing the appeal, the Court confirmed that a sentence of seven years (with a four-year non-parole period) for a s 33 offence described as among the most serious of its type was not manifestly excessive, notwithstanding a strong subjective case.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will decline to intervene even where error is assumed if no lesser sentence is warranted on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33, 61
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guideline judgment on plea discounts)
- R v Sharma (2002) 54 NSWLR 300
- R v Dib [2003] NSWCCA 117