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Court of Criminal Appeal 31 October 2003

REGINA v. LAO

[2003] NSWCCA 315

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER PLEA DISREGARDED WHAT IS APPROPRIATE RANGE SENTENCE WITHIN AN APPROPRIATE RANGE.

Citation: Regina v Lao [2003] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 31 October 2003
Judges: Spigelman CJ, O'Keefe J, Greg James J

Background

The appellant pleaded guilty in the District Court at Campbelltown to supplying a prohibited drug (MDMA, commonly known as Ecstasy) in a quantity greater than or equal to a large commercial quantity under the Drug (Misuse and Trafficking) Act 1985. The quantity involved was 1016.6 grams, more than twice the threshold for a large commercial quantity of 500 grams. The maximum penalty for this offence is life imprisonment.

The sentencing judge imposed a head sentence of five years imprisonment with a non-parole period of three years. In doing so, the judge expressly stated at the outset of the sentencing remarks that the case "entitles you to a low sentence," and then proceeded to give detailed reasons. The sentencing judge did not expressly mention the guilty plea when setting out those reasons.

On appeal, the appellant argued that the sentencing judge had failed to discount the sentence for the early guilty plea, and that the sentence was therefore excessive when measured against comparable cases.

  • Whether the sentencing judge erred by failing to expressly discount the sentence for the appellant's guilty plea
  • Whether the sentence, in the absence of any express reference to the plea, fell outside the appropriate range for this offence and these circumstances
  • Whether Judicial Commission sentencing statistics correctly identify the appropriate range for a particular offence

Decision

The Court of Criminal Appeal accepted that the sentencing judge's failure to expressly mention the guilty plea was an error. Under the principle established in Thomson and Houlton, a sentencing judge is required to identify and give reasons for a discount for a guilty plea. The omission was a formal deficiency in the reasons.

However, the Court found that this error did not require the sentence to be set aside. Greg James J reasoned that, given the judge had expressly announced an intention to impose a low sentence and had found favourably on every available subjective matter, the plea must have been taken into account as part of a global assessment of all mitigating factors. The sentence itself was consistent with having been informed by the plea, even if that was not stated explicitly.

The Court also noted that the objective circumstances were serious: the drug was ecstasy, the quantity was more than double the large commercial threshold, and the maximum penalty was life imprisonment. Against that background, the sentence of five years with a three-year non-parole period was, in the Court's view, genuinely at the lower end of what would be appropriate.

Spigelman CJ added a pointed observation about the use of Judicial Commission statistics. Those statistics do not define the appropriate range for a particular offence. They reflect outcomes across a wide variety of circumstances. A court determining an appropriate sentence must assess the full range of relevant factors specific to the case before it, and statistics aggregate only some of those factors.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Failing to expressly mention a guilty plea in sentencing remarks is an error, but the Court of Criminal Appeal will not automatically intervene if the sentence itself demonstrates the plea was taken into account and falls within an appropriate range.
  • Where a sentencing judge expressly announces an intention to impose a low sentence and finds favourably on all available mitigating factors, an appellate court may infer the plea was considered as part of a global assessment of subjective circumstances.
  • Judicial Commission sentencing statistics do not establish the appropriate range for a particular offence. The Court of Criminal Appeal confirmed they reflect outcomes across diverse cases and cannot be mechanically applied to define the sentencing bracket for any given matter.
  • In dismissing the appeal, the Court treated the seriousness of the objective circumstances (quantity more than double the large commercial threshold, maximum penalty of life imprisonment) as central to determining whether the sentence was within range.
  • No single mitigating factor, including a guilty plea, operates in isolation. The sentencing court weighs all subjective considerations together, and an appellate court looks to whether the result is within an appropriate range, not merely whether each factor was separately articulated.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383