Citation: Regina v Gregory Paul Magtoto [2005] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 9 May 2005
Judge(s): Hulme J, Barr J, Buddin J
Background
The applicant pleaded guilty in the District Court to one count of ongoing supply of a prohibited drug, namely heroin. The offending occurred over two days in Kings Cross in January 2004, when the applicant made two separate sales of heroin to an undercover police operative, each for $50, and on the following day supplied what turned out to be sugar, purportedly as heroin.
The applicant had initially indicated a not-guilty plea and a trial date was set. Approximately 20 days before trial, he changed his position and entered a guilty plea. The sentencing judge, Gibson QC ADCJ, imposed a sentence comprising a non-parole period of 2 years' imprisonment with a balance of 8 months, against a maximum custodial sentence of 20 years.
The applicant sought leave to appeal against that sentence on two grounds: that the sentencing judge had failed to give an adequate discount for the guilty plea, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to properly account for the utilitarian value of the guilty plea, including by not making a discrete quantification of any discount and not expressly referring to section 22 of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentence imposed was manifestly excessive, having regard to the applicant's personal circumstances, the judge's own assessment of the offence as below mid-range, and the apparent level of the sentence after allowing for the plea
Decision
On the first ground, the Court found no error in the sentencing judge's approach to the guilty plea. Barr J observed that the judge had referred to the plea on two separate occasions: once in the context of its timing, and once as evidence of contrition. The Court inferred that this dual reference demonstrated the judge had considered both the utilitarian value of the plea and its value as an indicator of remorse.
The Court declined to treat the absence of a nominated percentage discount or an express reference to section 22 of the Crimes (Sentencing Procedure) Act 1999 as establishing that the utilitarian value had been overlooked. Barr J noted the sentencing judge was a highly experienced practitioner of the craft and the judgment, though succinct, was not inadequate.
On the second ground, the Court rejected the contention that the sentence was manifestly excessive. While the applicant had no prior drug supply convictions, he had a substantial criminal history and, critically, was subject to both an active good-behaviour bond and a suspended sentence at the time of the offending. These were identified as serious aggravating circumstances. In light of those matters, Barr J described the sentence as "unremarkable."
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge is not required to nominate a specific percentage or quantified discount for a guilty plea, nor to expressly cite section 22 of the Crimes (Sentencing Procedure) Act 1999, provided the utilitarian value of the plea is genuinely reflected in the reasons.
- Where a sentencing judge addresses a guilty plea on more than one basis in the course of reasons, a court on appeal may draw the inference that both the utilitarian value and contrition aspects were considered.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that active bonds and suspended sentences in force at the time of offending can constitute serious aggravating circumstances capable of justifying a sentence that might otherwise appear above the level indicated by the primary offending.
- The absence of prior drug supply convictions does not, of itself, significantly mitigate a sentence where the broader criminal history discloses a pattern of offending and existing court orders were breached.
- Upholding the sentence, the Court treated an applicant's low prospects of rehabilitation as a relevant consideration open to the sentencing judge on the evidence before the District Court.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
Cases: No cases were cited in the provided judgment text.