Citation: [2004] NSWCCA 160
Court: Court of Criminal Appeal, New South Wales
Date: 15 March 2004
Judge(s): Tobias JA, Adams J, Smart AJ
Background
The applicant pleaded guilty in the District Court at Coonamble to three charges of supplying methylamphetamine on three separate occasions in mid-2001. The quantities involved were small: 0.74 grams, 1.11 grams, and 0.48 grams respectively. He also asked the court to take into account three additional minor matters involving possession of a small quantity of ammunition, a "mini crossbow," and nine grams of cannabis, all found during a search of his premises.
The sentencing judge at first instance imposed concurrent terms of two years and nine months' imprisonment on each charge, with a non-parole period of one year and nine months. The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were manifestly excessive.
A complicating feature of the case was that the applicant had initially been charged under section 25A of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of fifteen years' imprisonment. Once that charge was not pressed and individual supply charges were indicted, the charges could properly have been dealt with summarily, where the maximum on each count would have been two years' imprisonment.
Legal Issues
- Whether the sentences imposed at first instance were manifestly excessive given the small quantities of drug involved
- Whether the sentencing judge applied an appropriate utilitarian discount for the guilty plea, consistent with the principles in R v Thomson and Houlton
- Whether the sentencing judge erred by conflating the utilitarian discount for a guilty plea with considerations of remorse and the strength of the Crown case
Decision
The Court of Criminal Appeal unanimously held that the sentences were manifestly excessive. All three judges agreed that concurrent terms of two years and nine months, with a non-parole period of one year and nine months, could not be justified for offences involving quantities as small as these, even accounting for the scheduled matters and the principle of accelerated criminality for repeated offending.
On the question of the guilty plea discount, Adams J identified a significant error in the sentencing judge's approach. His Honour had assessed an overall discount of approximately 18.25 per cent but had reduced that figure by reference to the limited extent of the applicant's remorse and the strength of the Crown case. The Court found that both factors were irrelevant to the utilitarian discount, which is an objective measure of the public benefit arising from a guilty plea rather than a reflection of an offender's subjective contrition.
Adams J explained that remorse and contrition are properly treated as part of the offender's subjective circumstances and assessed before any utilitarian discount is applied. While remorse and a guilty plea are connected, their character is entirely different and they should not be conflated. In this case, given that the plea was entered at the first practical opportunity and there was a public interest in avoiding the need for police witnesses to give evidence, a discount at the upper end of the 10 to 25 per cent range identified in Thomson and Houlton was warranted.
The Court granted leave to appeal, allowed the appeal, quashed the original sentences, and substituted substantially reduced sentences. The applicant was ordered to be released on the date of the appeal hearing, having already served the non-parole period applicable to the revised sentence.
Orders Made
- In respect of the second charge (1.11 grams): a term of imprisonment of 18 months commencing 11 February 2003 and ending 10 August 2004, with a non-parole period expiring 15 March 2004; the applicant was released immediately and placed under supervision by the Probation and Parole Service
- In respect of the first charge (0.74 grams): a fixed term of imprisonment of six months commencing 11 February 2003
- In respect of the third charge (0.48 grams): a fixed term of imprisonment of six months commencing 11 February 2003
- Pre-sentence custody was taken into account in fixing the sentences
Key Takeaways
- The Court of Criminal Appeal confirmed that the utilitarian discount for a guilty plea, as established in R v Thomson and Houlton, is an objective measure of the public benefit of the plea and must not be reduced by reference to an offender's limited remorse or the strength of the Crown case.
- Remorse and contrition are properly assessed as part of an offender's subjective circumstances, to be considered before the utilitarian discount is applied, not mixed together with it.
- Where charges could properly have been disposed of summarily, the substantially lower summary maximum penalty is a significant sentencing consideration that a court must weigh.
- A guilty plea entered at the first practical opportunity, combined with a public interest in avoiding police witnesses giving evidence, ordinarily warrants a discount towards the upper end of the 10 to 25 per cent range.
- Concurrent terms of two years and nine months imposed for multiple supplies of methylamphetamine in very small quantities (under 1.2 grams each) were held to be manifestly excessive, resulting in substituted sentences of between six and eighteen months.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Firearms Act 1996 (NSW)
- Sentencing Act 1995 (NSW), s 44
Cases
- Pearce v The Queen (1998) 194 CLR 410
- R v Thomson and Houlton (2000) 49 NSWLR 383