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Court of Criminal Appeal 27 September 2004

Regina v Johnson

[2004] NSWCCA 341

Theft & property
CRIMINAL LAW RECEIVE STOLEN GOODS PLEA OF GUILTY APPEAL AGAINST SEVERITY OF SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Regina v Johnson [2004] NSWCCA 341
Court: Court of Criminal Appeal, New South Wales
Date: 27 September 2004
Judge(s): Wood CJ at CL, Barr J, Hoeben J

Background

The applicant pleaded guilty in the Local Court to an offence of receiving stolen goods, specifically a quantity of jewellery and a knife he had accepted in order to fund drug purchases. He was sentenced in the District Court by Patten DCJ to four years' imprisonment with a non-parole period of two years, commencing 15 March 2003, to be served concurrently with an existing sentence for break and enter with intent to steal.

The existing sentence had originally been a suspended sentence imposed in June 2002, but was converted to full-time custody after the applicant committed a series of further offences while on conditional liberty. The applicant also carried a lengthy criminal record in both New South Wales and Queensland for dishonesty offences, and had served multiple custodial sentences.

The applicant sought leave to appeal against the severity of the sentence, arguing that the sentencing judge had failed to properly acknowledge and quantify the utilitarian value of the guilty plea, and that the overall sentence was manifestly excessive.

  • Whether a sentencing judge is required to expressly quantify the discount applied for a guilty plea, or whether it is sufficient to acknowledge the plea without nominating a specific reduction.
  • Whether, in the absence of an expressed discount, the sentence as a whole demonstrated that the guilty plea was given sufficient weight.
  • Whether the sentence of four years' imprisonment was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal dismissed the appeal, granting leave but finding it devoid of merit. On the question of quantifying the plea discount, the Court confirmed the principle established in R v Thomson (2000): a sentencing judge is not obliged to expressly state a numerical discount for a guilty plea, provided it is clear that the plea was genuinely taken into account in the offender's favour. The Court noted that observations in R v Sutton [2004] encouraging judges to nominate the utilitarian value of a plea did not disturb the Thomson principle.

Where no discount is expressly nominated, the Court must instead examine the sentence as a whole to determine whether the plea received adequate weight and whether the sentence is manifestly excessive. On the facts, the Court found the sentence was not manifestly excessive. The four-year term operated concurrently with the converted suspended sentence, effectively adding only two years to the overall head sentence and one year to the overall non-parole period, which the Court considered appropriate in context.

Several aggravating factors weighed heavily against the applicant. He had reoffended while on conditional liberty, which is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999. His extensive record of dishonesty offences and anti-social behaviour, combined with prior custodial sentences, further reduced the mitigating effect of otherwise favourable personal circumstances.

The Court accepted that drug addiction provided an explanation for the offending, but held that it did not operate in mitigation. Positive factors including family support, remorse, insight, and prospects of employment were considered, and the Court noted they were appropriately reflected in a finding of special circumstances, which produced a significant reduction in the non-parole period relative to the head sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to expressly quantify the discount for a guilty plea, provided the judgment makes clear the plea was taken into account: this principle from R v Thomson (2000) 49 NSWLR 383 was reaffirmed.
  • Where the discount is not nominated, the appellate court reviews the sentence as a whole to assess whether the plea received sufficient weight and whether the sentence is manifestly excessive.
  • Reoffending while on conditional liberty is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and carries significant weight in sentencing, particularly when combined with an extensive prior record.
  • Drug addiction as a motivation for offending provides context for the conduct but does not, of itself, operate as a mitigating circumstance.
  • Favourable personal factors such as remorse, family support, and rehabilitation prospects may be reflected through a finding of special circumstances and a reduced non-parole period, rather than through a reduction in the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson (2000) 49 NSWLR 383
- R v Sutton [2004] NSWCCA 225
- R v Deluca [2002] NSWCCA 446
- R v Lloyd [2003] NSWCCA 49
- R v Young [2003] NSWCCA 276
- R v Simpson (2001) 53 NSWLR 704
- R v Readman (1990) 47 A Crim R 181
- R v Vranic NSWCCA, 7 May 1991