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Court of Criminal Appeal 12 May 2004

REGINA v JON BOICUIC

[2004] NSWCCA 146

Drugs

Citation: Regina v Jon Boicuic [2004] NSWCCA 146
Court: New South Wales Court of Criminal Appeal
Date: 12 May 2004
Judge(s): McColl JA, Levine J, Hidden J

Background

The applicant pleaded guilty in the District Court to two counts of supplying heroin, both occurring on 8 October 2002, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. He had been in custody since the date of his arrest and entered his guilty pleas on arraignment in June 2003. Three additional "goods in custody" offences were listed on a Form 1 to be taken into account at sentencing.

Judge Urquhart QC sentenced the applicant in August 2003 to a total term of four years and six months imprisonment, with a non-parole period of two years and nine months, with both counts to be served concurrently. The applicant sought leave to appeal against that sentence.

The sole ground of appeal was that the sentencing judge had erred by failing to apply any discount to the sentence in recognition of the utilitarian value of the guilty plea.

  • Whether the sentencing judge failed to give the applicant any reduction in sentence for the utilitarian value of his guilty plea.
  • Whether the sentencing judge's remarks adequately disclosed that a discount had been applied, or provided reasons if no discount was given.
  • Whether s 6(3) of the Criminal Appeal Act 1912 applied to preclude resentencing.
  • What discount, if any, was appropriate in the circumstances.

Decision

Levine J (with McColl JA and Hidden J agreeing) concluded that the sentencing judge's remarks on the plea of guilty were ambiguous at best and, on their proper construction, indicated that no discount had been given at all. His Honour's brief comments appeared to conflate a submission about why the plea was entered with the question of whether the plea itself attracted a utilitarian discount, without clearly addressing the latter.

The Court affirmed the established principle that an offender who pleads guilty is entitled to a reduction in the otherwise appropriate sentence in recognition of that plea. Transparency in how that discount is applied is an important policy requirement: the offender, the Crown, and the community are all entitled to know what benefit, if any, has been given.

The Court rejected the Crown's submission that s 6(3) of the Criminal Appeal Act 1912 precluded resentencing. The error was one of critical importance affecting the quantum of the sentences, and the Court found it appropriate to intervene. A discount of 10 per cent was applied to the sentence, reducing the head sentence by six months.

In addition, the Court accepted uncontested affidavit evidence that, on his return to custody immediately after sentencing, the applicant witnessed his cellmate having hanged himself and watched unsuccessful attempts at resuscitation. The Court accepted that this traumatic event had caused the applicant psychological harm, and treated it as a further basis to reduce the non-parole period by an additional six months to allow time for rehabilitative counselling.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed and replaced with a term of imprisonment of four years, commencing 8 October 2002 and expiring 7 October 2006, with a non-parole period of two years commencing 8 October 2002 and expiring 7 October 2004.

Key Takeaways

  • An offender who pleads guilty is entitled to expect a reduction in sentence in recognition of the utilitarian value of that plea, as confirmed in Cameron v The Queen, R v Thomson; R v Houlton, and related authorities.
  • Sentencing courts must make explicit what allowance, if any, is being given for a guilty plea; opacity in that explanation is itself a source of appellable error.
  • Where a sentencing judge's remarks are reasonably construed as having withheld any plea discount without adequate explanation, the Court of Criminal Appeal will intervene if the error affected the quantum of the sentence.
  • Post-sentencing events that are exceptional in nature and bear on rehabilitation can be taken into account when a resentencing occasion arises, as the Court here reduced the non-parole period to accommodate the applicant's demonstrated psychological need for counselling.
  • The Court of Criminal Appeal declined to apply s 6(3) of the Criminal Appeal Act 1912 where the sentencing error went to a matter of critical importance in fixing the sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Cameron v The Queen (2002) 209 CLR 339
- R v Thomson; R v Houlton (1999–2000) 49 NSWLR 383
- R v Sharma (2002) 54 NSWLR 300
- Winchester v The Queen (1992) 58 A Crim R 345
- R v Simpson (2001) 53 NSWLR 704
- R v Shenton [2003] NSWCCA 346