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23
Court of Criminal Appeal 21 September 2004

R v G J Davies

[2004] NSWCCA 319

Assault & violence
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE STANDARD NON PAROLE PERIOD WHETHER COURT SHOULD INTERVENE

Citation: R v G J Davies [2004] NSWCCA 319
Court: New South Wales Court of Criminal Appeal
Date: 21 September 2004
Judges: Wood CJ at CL, Kirby J, Buddin J

Background

The appellant pleaded guilty in the District Court to a serious assault offence. The offence involved a sustained and violent attack on a vulnerable woman, committed in the presence of a child and involving a weapon. The appellant was on a bond at the time, and was sentenced by Christie DCJ.

The appellant sought to appeal against the sentence imposed. Leave to appeal out of time was required. The Crown also participated in the appeal, arguing that even if the sentencing judge had erred, the sentence imposed was not more lenient than it should have been.

The key error identified at first instance was that the sentencing judge had taken into account the strength of the Crown case when fixing the discount for the guilty plea. This was an error because the strength of the prosecution case against an offender is not a proper basis for reducing or qualifying the utilitarian discount for a guilty plea.

  • Whether the sentencing judge erred by taking account of the strength of the Crown case when fixing the discount for the guilty plea
  • Whether the standard non-parole period under s 54B of the Crimes (Sentencing Procedure) Act 1999 applies as a reference point in cases where the offender was convicted after a guilty plea rather than after trial
  • Whether, notwithstanding any error, a more lenient sentence was warranted such that the Court of Criminal Appeal should intervene

Decision

The Court accepted that the sentencing judge had erred in factoring the strength of the Crown case into the guilty plea discount. The appropriate discount for a plea reflects its utilitarian value, generally in the range of 10 to 25 percent depending on timing, not the prospects of conviction at trial.

On the question of standard non-parole periods, Wood CJ at CL and Kirby J both confirmed that s 54B remains applicable as a reference point even where the offender has pleaded guilty. The standard non-parole periods in the statutory table are set for mid-range cases determined after trial, but that does not mean they are irrelevant to plea cases. Rather, the sentencing court must treat the standard non-parole period as a benchmark, then adjust from it to account for the plea discount and other mitigating or aggravating factors.

The Court addressed a potential ambiguity arising from an earlier decision, R v Mouloudi, in which a judge had noted that the "discretion in fixing a non-parole period after a plea is unfettered." Wood CJ at CL clarified that this remark should not be read as suggesting that s 54B has no application after a plea. The standard non-parole period retains its role as a guidepost in all cases, including those resolved by plea.

Applying that framework, the Court accepted the Crown's submission that even with a full 25 percent discount for the early plea, and accounting for the finding of special circumstances (it being the appellant's first time in custody), the correctly calculated sentence would have exceeded the one actually imposed. No more lenient sentence was warranted. The appeal was accordingly dismissed.

Orders Made

  • Leave to file an appeal out of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 54B of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period operates as a reference point or benchmark in all cases, including those resolved by guilty plea, not only those determined after trial.
  • The standard non-parole periods in the table are set for mid-range offences determined after trial, meaning the sentencing court must then adjust from that benchmark to account for a guilty plea and other relevant factors.
  • Taking into account the strength of the Crown case when fixing the discount for a guilty plea constitutes a sentencing error; the appropriate measure is the utilitarian value of the plea, generally falling between 10 and 25 percent depending on timing.
  • In dismissing the appeal, the Court confirmed that identifying a sentencing error does not automatically lead to a lesser sentence. Where a proper application of the correct methodology would still produce a sentence equal to or greater than the one imposed, intervention is not warranted.
  • The Court of Criminal Appeal's analysis in R v Way [2004] NSWCCA 131 remains the governing framework for applying standard non-parole periods, and the Court here clarified that R v Mouloudi should not be read as departing from that approach.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 21A, 22, 22A, 23, 54B
- Crimes Act 1900 (NSW)

Cases:
- R v Way [2004] NSWCCA 131
- R v Mouloudi [2004] NSWCCA 96
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Carter [2001] NSWCCA 245
- R v Simpson (2001) 53 NSWLR 704
- R v Sutton [2004] NSWCCA 225
- R v Boulghourgian (2001) 125 A Crim R 540