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Court of Criminal Appeal 3 August 2004

R v . WASSON

[2004] NSWCCA 200

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE DISTRICT COURT SENTENCE 2 YRS, NP 1 1 2 YEARS. CONSIDERATION OF EARLY PLEA OF GUILTY SPECIAL CIRCUMSTANCES

Citation: Wasson v R [2004] NSWCCA 200
Court: New South Wales Court of Criminal Appeal
Date: 3 August 2004
Judge(s): Bryson JA; James J; Kirby J

Background

The applicant was one of three co-offenders who conspired to defraud an insurer by falsely reporting a motor vehicle stolen, intending to destroy it and claim approximately $20,800 in insurance proceeds. The applicant was identified as the mastermind behind the scheme. The plan unravelled within an hour when police stopped the vehicle during a random breath test, and the applicant made substantial admissions in a recorded interview shortly afterwards.

All three co-offenders pleaded guilty. The District Court at Taree sentenced the applicant and one co-offender (Lewis) each to two years' imprisonment with a non-parole period of 18 months. The third co-offender (Fensom) received a shorter sentence. The applicant was 37 years old and had several prior convictions, including one for dishonesty.

Before the applicant's appeal was heard, the Court of Criminal Appeal allowed Lewis's separate appeal and substantially reduced his sentence to 12 months with a non-parole period of 16 weeks. That outcome significantly disturbed the parity the sentencing judge had intended to achieve between the applicant and Lewis.

  • Whether the sentencing judge gave adequate allowance for the applicant's early plea of guilty
  • Whether the sentencing judge erred by failing to consider or address special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, which can justify departing from the standard ratio between non-parole period and head sentence
  • Whether the sentence was excessive overall, including in light of the parity concern arising from the reduction of Lewis's sentence on appeal
  • Whether procedural fairness was observed during sentencing

Decision

Plea of guilty: The Court found that the sentencing judge had taken the plea into account, at least in the context of contrition and public utility, but criticised the lack of explicit reasoning on the discount applied. The Court noted, following R v Thomson (2000) 49 NSWLR 383, that while there is no strict obligation to quantify a guilty plea discount in percentage terms, the absence of any transparent reasoning made review difficult. The Court concluded it could not determine precisely what weight the plea received, but did not find a clear error on this ground alone.

Special circumstances: The Court identified a more concrete error. Neither the sentencing judge's remarks nor the submissions at sentence addressed special circumstances under s 44(2). The sentence was simply divided in the statutory ratio, with no indication the discretion under s 44(2) had been exercised. The Court held this constituted an error requiring it to resentence. However, on resentencing, the Court was not persuaded that the circumstances put forward (the applicant's mature age, a relatively blameless life until marital breakdown, and community service work) actually constituted special circumstances warranting a departure from the statutory ratio.

Parity and overall sentence: The Court acknowledged the significant reduction in Lewis's sentence created a striking parity disparity. However, it noted the sentencing judge had found the applicant was the "mastermind" of the scheme and that the two co-offenders had very different subjective circumstances. The Court held the original sentence of two years with a non-parole period of 18 months was not excessive for the applicant, having regard to her leading role, her prior record, and the nature of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to quantify a guilty plea discount as a percentage, but the Court of Criminal Appeal confirmed that transparent reasoning on the weight given to a plea is strongly preferable and its absence complicates appellate review.
  • Where evidence before a sentencing court is capable of raising special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the judge must address that issue; failing to do so constitutes an error requiring the appellate court to resentence.
  • Finding an error and proceeding to resentence does not automatically produce a different outcome: the Court of Criminal Appeal declined to vary the statutory ratio after concluding the circumstances identified did not meet the threshold for special circumstances.
  • Parity between co-offenders' sentences can be disturbed when one co-offender successfully appeals; however, a substantial difference in culpability or subjective circumstances can justify a sentencing disparity that might otherwise cause a co-offender a justifiable sense of grievance.
  • In dismissing the appeal, the Court confirmed that an applicant's leading role in a conspiracy, combined with a prior record including a dishonesty offence, can support a full-term custodial sentence even where an early plea was entered and the offence was fortuitously detected.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Justices Act 1900 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Lewis [2003] NSWCCA 375
- R v Thomson (2000) 49 NSWLR 383
- R v Mason [2000] NSWCCA 207
- Pantorno v R (1989) 166 CLR 466
- Champion v R (1992) 64 A Crim R 244
- Parker v DPP (1992) 28 NSWLR 282
- R v Simpson (2001) 53 NSWLR 704
- House v The King (1936) 55 CLR 499