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9
Court of Criminal Appeal 23 April 2004

R v Newman

[2004] NSWCCA 113

Theft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE BREAK ENTER AND STEAL

Citation: R v Newman [2004] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 23 April 2004
Judge(s): Wood CJ at CL, Simpson J, Bell J

Background

The appellant pleaded guilty in the Local Court to three counts of break, enter and steal under s 112(1) of the Crimes Act 1900, and was committed to the District Court for sentencing. The offences involved the daytime burglary of three dwelling houses, from which the appellant stole computer equipment, electrical goods, jewellery, and cigarettes totalling approximately $15,500 in value. DNA evidence linked him to each scene, as he had cut himself and left blood at each location.

Judge Urquhart QC in the District Court sentenced the appellant to an aggregate term of 4 years and 11 months imprisonment, with a non-parole period of 3 years and 5 months. The sentences for the first two counts ran concurrently, with the third count commencing 12 months after the others. Two further offences (goods in custody, committed while the appellant was on bail) were taken into account on a Form 1 basis.

The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentencing judge had failed to give sufficient weight to the utilitarian value of his guilty pleas when applying the discount required by s 22 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge gave adequate weight to the utilitarian value of the appellant's guilty pleas under s 22 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the strength of the Crown case properly affects the utilitarian component of a guilty plea discount, or only the contrition component
  • Whether the sentences imposed fell within the appropriate range so as to warrant appellate intervention

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Wood CJ at CL (with whom Simpson J and Bell J agreed) found no error in the sentencing judge's approach to the guilty plea discount.

The Court affirmed the principles in Regina v Thomson & Houlton (2000) 49 NSWLR 383, which established that guilty plea discounts ordinarily fall between 10 and 25%. The key factors governing the size of the discount are the timing of the plea and the extent to which it saved court time and the expense of assembling evidence. Discounts towards the lower end of the range are appropriate for late pleas, while the top of the range is reserved for pleas at the earliest opportunity.

On the central argument, the Court confirmed that the strength of the Crown case is relevant only to the contrition element of the sentencing discount, not to its utilitarian component. However, the sentencing judge's discounts of approximately 12.5% to 12.96% were not shown to be erroneous. The pleas were entered in the Local Court, but the appellant's equivocal responses during police interview, and the absence of any genuine acknowledgment until DNA evidence was presented, legitimately bore on the overall assessment.

The Court also rejected arguments that the sentences were outside range or that the appellant's claimed rehabilitation prospects warranted greater leniency. While sentencing statistics showed the sentences were towards the upper end of the range, that alone was insufficient to attract appellate intervention. The Court reiterated that sentence appeals based on comparisons with individual other cases are not to be encouraged, as sentencing remains an individualised exercise calibrated to the offender's objective criminality and subjective circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the strength of the Crown case is relevant only to the contrition component of a guilty plea discount, not to its utilitarian value. A near-certain prosecution does not reduce the utilitarian benefit of sparing the court time and expense.
  • Under Thomson & Houlton, the available range for guilty plea discounts is 10 to 25%, with timing and the savings in court time and evidence preparation being the principal determinants of where within that range a discount falls.
  • Discounts of approximately 12.5% to 13% were upheld as within the proper exercise of discretion where the plea was entered relatively early but the appellant had given equivocal and evasive responses during police interview before ultimately pleading guilty.
  • Claims that an offender has reached a turning point in life or has strong rehabilitation prospects are not to be accepted at face value without critical scrutiny: the Court applied Regina v Govinden [1999] NSWCCA 118 on this point.
  • Sentences falling towards the upper end of the statistical range do not, without more, warrant appellate intervention. Comparing sentences in individual cases that raise no parity issues remains a disfavoured approach to sentence appeals.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 (guilty plea to be taken into account)

Cases
- Regina v Thomson & Houlton (2000) 49 NSWLR 383
- Regina v Govinden [1999] NSWCCA 118
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Trevenna [2004] NSWCCA 43
- Regina v Andreassen [2001] NSWCCA 246
- Regina v Carter [2001] NSWCCA 245
- Regina v Dib [2003] NSWCCA 117
- Regina v Ebsworth [2002] NSWCCA 465
- Regina v Parkinson [2001] NSWCCA 244
- Regina v Salameh, NSWCCA, 9 June 1994