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Court of Criminal Appeal 6 April 2004

R v Parker

[2004] NSWCCA 115

Theft & property
APPEAL AGAINST SEVERITY TAKING INTO ACCOUNT PLEAS OF GUILTY MANIFEST SEVERITY

Citation: R v Parker [2004] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 6 April 2004
Judge(s): Handley JA, Dowd J, Greg James J

Background

The applicant pleaded guilty in the District Court to two charges of break, enter and steal under s 112 of the Crimes Act 1900. The first offence involved a residential break-in where items were stolen and the applicant's fingerprints were found at the scene. The second offence occurred at Kariong in October 2002, where the applicant and a companion stole tools, a camera and a backpack, with the applicant identified through DNA evidence and photographs.

Freeman DCJ sentenced the applicant to a fixed term of three years on the first count, and five years with a three-year non-parole period on the second count. The applicant was 25 years old at the time of sentencing, had a longstanding heroin addiction, and had breached two good behaviour bonds at the time the offences were committed.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to apply a discount for the guilty pleas, that he failed to account for the fact the matter could have been dealt with in the Local Court, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by failing to expressly discount the sentence to reflect the utilitarian value of the guilty pleas, as required by R v Thompson and s 22 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentences should have been reduced on the basis that the matters could have been prosecuted in the Local Court rather than the District Court
  • Whether the sentences were manifestly excessive having regard to comparable cases

Decision

On the first ground, Dowd J found that the sentencing judge's only reference to the guilty pleas was as the basis for establishing conviction, not as a factor warranting a reduction in penalty. Nothing in the remarks on sentence indicated that a discount had been applied. Under R v Thompson, the utilitarian value of a plea of guilty should be assessed in the range of 10 to 25 per cent, and s 22 of the Crimes (Sentencing Procedure) Act 1999 requires a court to take the plea into account and to give reasons if it does not reduce the sentence. This ground was made out.

On the second ground, Dowd J rejected the argument that the District Court should have reduced the sentence to reflect the availability of Local Court jurisdiction. The prosecution's election to proceed in the District Court is a non-reviewable exercise of prosecutorial discretion. In this case, the applicant had breached two good behaviour bonds, one of which was a District Court bond, making it appropriate to proceed in the higher court. No error was established on this ground.

On the third ground, Dowd J acknowledged that the sentences were higher than many comparable cases but found they remained within the available range. Manifest excess was not established.

Because the first ground succeeded, the Court re-sentenced the applicant. It applied a discount of approximately 17 per cent on the first count (reducing the fixed term from three years to two and a half years) and 20 per cent on the second count (reducing the head sentence from five years to four years). The non-parole period on the second count was set at two and a half years, concurrent with the fixed term on count 1, with the Court finding special circumstances to justify a non-parole period below 75 per cent of the head sentence. The applicant's demonstrated progress in a drug-free wing program while in custody was noted and commended, though it did not alter the structural approach to re-sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences quashed
  • Applicant re-sentenced as follows:
  • Count 1: Fixed term of two and a half years, commencing 4 December 2002, expiring 3 June 2005
  • Count 2 (including Form 1 matter): Head sentence of four years, commencing 4 December 2002, expiring 3 December 2006; non-parole period of two and a half years, commencing 4 December 2002, expiring 3 June 2005, subject to supervision by the Probation and Parole Service

Key Takeaways

  • A sentencing court must expressly take into account the utilitarian value of a guilty plea and reflect that discount in the sentence imposed; a reference to the plea merely as the basis for conviction is insufficient.
  • Under R v Thompson (2000) 49 NSWLR 383, the utilitarian discount for a guilty plea ordinarily falls in the range of 10 to 25 per cent.
  • Section 22 of the Crimes (Sentencing Procedure) Act 1999 obliges a court to reduce a sentence for a guilty plea or to give reasons for not doing so; failure to address this is a sentencing error capable of grounding a successful appeal.
  • The decision to prosecute in the District Court rather than the Local Court is an exercise of prosecutorial discretion that courts will not ordinarily treat as a mitigating factor, particularly where the circumstances, such as breach of a District Court bond, justify the higher court's jurisdiction.
  • Sentences that sit above the statistical range for comparable offences do not automatically constitute manifest excess; they must fall entirely outside the available range before that ground is established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112 (break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 22, 44

Cases
- R v Thompson (2000) 49 NSWLR 383