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Court of Criminal Appeal 30 June 2004

Regina v Turner

[2004] NSWCCA 260

Theft & property
CRIMINAL LAW SENTENCING DOUBLE JEOPARDY.

Citation: Regina v Turner [2004] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 30 June 2004
Judges: Ipp JA, Hulme J, Hislop J

Background

The applicant pleaded guilty at the committal stage to breaking and entering a dwelling house with intent to steal, contrary to s 113(1) of the Crimes Act 1900. A related offence of possessing housebreaking implements was taken into account on a Form 1. Both offences arose from the same incident.

The sentencing judge in the District Court, Bell DCJ, imposed a head sentence of three years and four months with a non-parole period of thirty months. His Honour applied only a 10 per cent discount for the guilty plea, apparently treating the strength of the Crown case as a factor that reduced the utilitarian value of the plea.

The applicant sought leave to appeal against the sentence, arguing that the discount was erroneously low and that the sentencing judge had misdirected himself on the proper approach to guilty plea discounts.

  • Whether the utilitarian value of a guilty plea can be reduced because the Crown case is strong.
  • Whether the sentencing judge applied an appropriate discount for the applicant's early guilty plea.
  • Whether the principle of double jeopardy applied to resist the Crown's submission that the sentence should remain unchanged despite the identified error.
  • Whether the sentence should be backdated to the date of the applicant's arrest.

Decision

Hislop J (with Ipp JA agreeing) held that the sentencing judge erred in applying only a 10 per cent discount for the guilty plea. The plea was entered at the committal stage, meaning the full utilitarian benefit of avoiding a trial and its associated expense was realised. The strength of the Crown case does not reduce that utilitarian value.

On the double jeopardy argument, Hislop J found it unnecessary to resolve the question, given the conclusion reached on the merits. However, Hulme J addressed the issue directly and in some detail. His Honour expressed the view that the concept of double jeopardy, properly understood, applies to situations where an offender faces the risk of a heavier sentence on a Crown appeal, and is not the appropriate concept to invoke under s 6(3) of the Criminal Appeal Act. Hulme J examined three earlier cases in which the expression had been used in sentencing appeals and found that those passages either did not bear the meaning counsel attributed to them, or should not be followed.

Hulme J also confirmed that s 6(3) requires the Court to focus on the sentence ultimately imposed, not the sentencing judge's starting point, and that the power to substitute a different sentence is only enlivened when the Court forms a positive opinion that some other sentence is warranted in law and should have been passed.

On the question of backdating, Hislop J upheld the approach taken below. Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 requires the court to account for time already served in custody in relation to the subject offence, and backdating also avoided the risk of double punishment where the subject offence may itself have constituted the breach of parole.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • In lieu, the applicant sentenced to three years imprisonment, commencing 12 March 2003 and expiring 11 March 2006.
  • Non-parole period of two years and three months fixed, expiring 11 June 2005.

Key Takeaways

  • The utilitarian value of a guilty plea is not diminished by the strength of the Crown case. An early plea saves the public the expense and inconvenience of a trial regardless of how strong the prosecution's evidence is.
  • A guilty plea entered at the committal stage realises the full utilitarian benefit, and a discount of only 10 per cent was held to be erroneously low in those circumstances.
  • The principle of double jeopardy, properly applied, concerns the risk of a heavier sentence on a Crown appeal. Hulme J cautioned against extending the expression to resist correction of an identified sentencing error under s 6(3) of the Criminal Appeal Act.
  • Under s 6(3), the Court of Criminal Appeal's power to substitute a sentence is conditional on forming a positive opinion that some other sentence is warranted in law and should have been passed, with that assessment directed at the sentence ultimately imposed rather than the sentencing judge's starting point.
  • Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 requires time spent in custody to be reflected in the sentence, and backdating is appropriate where failure to do so would result in double punishment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(1), 114(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A(3)(k), 22(1), 47(3)
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- R v Bishop (NSWCCA, 23 September 1996, unreported)
- R v Lee (2002) NSWCCA 236
- R v Sharma (2002) 54 NSWLR 300
- Veen v R (No 2) (1988) 164 CLR 465
- R v Simpson (2001) 53 NSWLR 704 (discussed by Hulme J)
- R v Parkinson (2001) 125 A Crim R 1 (discussed by Hulme J)
- R v Petrie (2003) NSWCCA 205 (discussed by Hulme J)