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Court of Criminal Appeal 3 November 2003

R v Turner

[2003] NSWCCA 334

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCING

Citation: R v Turner [2003] NSWCCA 334
Court: NSW Court of Criminal Appeal
Date: 3 November 2003
Judge(s): Barr J, Greg James J, Howie J

Background

The appellant was sentenced in the District Court after pleading guilty to threatening to use an offensive weapon with intent to commit murder, an offence under section 33B(1)(a) of the Crimes Act. The charge arose from an incident in April 2002 in which he held a shard of glass close to his infant son's neck during a confrontation that followed a series of assaults on his estranged wife. Five further offences, including assaults and property damage, were taken into account at sentencing.

Judge Freeman sentenced the appellant to six years and three months' imprisonment with a non-parole period of four years. The sentencing judge applied a discount of approximately 10 per cent for the guilty plea, reduced from a notional head sentence of seven years.

The appellant, appearing in person before the Court of Criminal Appeal, challenged both the adequacy of the discount applied for his guilty plea and the conduct of his former barrister. He also raised allegations of a conspiracy involving his former barrister, his estranged wife, the Director of Public Prosecutions, and the sentencing judge.

  • Whether the sentencing judge applied an adequate discount for the guilty plea, having regard to the principle in R v Thomson; R v Houlton that a discount of 10 to 25 per cent is appropriate for the utilitarian value of a plea
  • Whether the conduct of the appellant's former barrister at sentencing constituted a ground for intervention
  • Whether the overall sentence, including the non-parole period, fell within the proper range of the sentencing judge's discretion

Decision

On the question of the guilty plea discount, the Court acknowledged some potential substance in the criticism. The Thomson; Houlton range of 10 to 25 per cent generally contemplates a higher discount for an earlier plea, and a plea at the earliest opportunity might ordinarily attract more than 10 per cent. However, the Court emphasised that it does not simply substitute its own view for that of the sentencing judge, and that the relevant inquiry under section 6(3) of the Criminal Appeal Act is whether the resulting sentence was one that should not have been passed.

On the totality of the sentence, the Court was satisfied that a non-parole period of four years was entirely appropriate given the serious nature of the offence. Even accepting that the discount may have been at the lower end of the acceptable range, any error in that regard did not affect the overall product of the sentencing exercise to the point of warranting intervention. Greg James J noted that an error in the discount calculation does not, of itself, require the Court to set aside a sentence if the final outcome remains within the proper range.

The allegations concerning the former barrister's conduct, a suggested conspiracy, and confusion about the charge were rejected. The facts underpinning the guilty plea were not challenged at the time of sentencing, and the Court found no substance in the complaints raised on appeal. The appellant's progress in completing programs while in custody, though noted as encouraging, was a matter the Court could not take into account on an appeal confined to error by the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea discount of 10 to 25 per cent reflects the utilitarian value of the plea, with earlier pleas generally attracting a higher discount within that range, as confirmed in R v Thomson; R v Houlton.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a sentencing judge may have erred in applying a discount toward the lower end of the range, that error will not justify intervention if the resulting sentence overall falls within the proper sentencing range.
  • Under section 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal will only intervene on a severity appeal where some other sentence is warranted in law and should have been passed; the focus is on the final sentence, not isolated steps in the reasoning.
  • Post-sentence rehabilitation and program completion cannot be taken into account by an appellate court whose role is confined to assessing error by the sentencing judge.
  • The maximum penalty for threatening to use an offensive weapon with intent to commit murder under section 33B(1)(a) of the Crimes Act is 12 years' imprisonment; a sentence producing a four-year non-parole period was found to sit within the proper range for a serious offence of this kind.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 33B(1)(a)
- Crimes (Sentencing Procedure) Act (NSW), s 32
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309