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Court of Criminal Appeal 4 May 2005

Regina v Griffiths

[2005] NSWCCA 184

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE NO SPECIAL POINT OF PRINCIPLE

Citation: Regina v Griffiths [2005] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 4 May 2005
Judges: Grove J, Hulme J, Simpson J

Background

The applicant pleaded guilty before a magistrate to aggravated breaking, entering and stealing and resisting arrest, both arising from a single incident in Redfern in April 2004. The agreed facts described him climbing onto a first-floor balcony, taking items from inside the premises, then resisting police attempts to arrest him by stiffening his limbs and moving his arms to avoid being restrained.

The applicant was committed to the District Court for sentencing. Blackmore DCJ imposed a fixed term of six months for the resisting arrest offence, followed by a cumulative sentence of four years and six months (with a non-parole period of three years and three months) for the aggravated break-and-enter. The total effective non-parole period placed the earliest parole date in January 2008.

The applicant sought leave to appeal on two grounds: that the discount applied for his early guilty plea was inadequate, and that the sentences were manifestly excessive.

  • Whether the sentencing judge applied an adequate discount for the applicant's guilty plea, which had been entered at the earliest opportunity
  • Whether the resulting sentences were manifestly excessive having regard to the circumstances of the offences and the applicant's personal background

Decision

On the first ground, the majority (Grove and Simpson JJ) accepted that the sentencing judge had expressed an intention to allow a "substantial discount" but found the arithmetic result fell short of what that intention implied. The judge had indicated a starting point of six years total, but the resulting sentence reflected a discount of only 16.7 percent. The guideline in R v Thomson and Houlton suggests a range of 10 to 25 percent for a plea at the earliest opportunity, and the majority observed that, in practice, offenders pleading guilty at the very first opportunity commonly receive a discount at the upper end of that range.

Grove J acknowledged genuine reluctance to find error but concluded that, in the absence of any explanation for departing significantly from the upper end of the range, intervention was warranted. The majority therefore allowed the appeal in part, reducing the non-parole period for the aggravated break-and-enter from three years and three months to three years, and reducing the total term from four years and six months to four years.

Hulme J dissented on this ground. His Honour pointed to the passage in Thomson and Houlton identifying the complexity and likely length of any trial as a relevant factor in assessing the utilitarian value of a plea. Given the uncomplicated facts and what would have been an extremely brief trial, Hulme J saw no error in the sentencing judge's decision to apply a discount of one year from an assessed starting point of six, equating to 16.7 percent.

On the second ground, the Court unanimously rejected the manifestly excessive argument. Grove J found that the seriousness of the aggravated break-and-enter, particularly the circumstance that the applicant knew occupants were present, combined with his being on parole at the time, justified the sentence imposed. No error in the sentencing judge's weighing of the relevant factors was established.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part; sentence for aggravated breaking, entering and stealing quashed
  • In lieu of the quashed sentence, the applicant sentenced to imprisonment with a non-parole period of three years commencing 9 October 2004 and expiring 8 October 2007, and a total term of four years expiring 8 October 2008
  • First date of eligibility for parole specified as 8 October 2007

Key Takeaways

  • The Thomson and Houlton guideline range of 10 to 25 percent for an early guilty plea does not create a rigid rule, but the majority of the Court of Criminal Appeal found that a departure from the upper end of the range, without explanation, can constitute appealable error.
  • Where a sentencing judge expressly states an intention to provide a "substantial discount" for a plea at the earliest opportunity, the resulting arithmetic must be consistent with that stated intention.
  • A discount of approximately 16.7 percent was characterised differently by the majority and the dissent: the majority treated it as an unexplained departure from prevailing practice, while Hulme J treated it as a legitimate response to the negligible utilitarian value of a plea in a straightforward, short-trial matter.
  • The utilitarian value of a guilty plea, as a factor affecting the level of discount, is informed by the likely length and complexity of any trial that the plea avoids.
  • Being on parole at the time of the offence remained a significant aggravating circumstance that the Court confirmed could support a sentence toward the higher end of the available range, even where other mitigating factors were present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 58 (resisting arrest)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guilty plea discount guideline)
- R v Way (2004) 60 NSWLR 168 (standard non-parole periods and the effect of a guilty plea)
- R v Dowd [2005] NSWCCA 113 (guideline does not create a rule)
- R v Johnston [2004] NSWCCA 307 (expectation of explanation when discount is at lower end of range)