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Court of Criminal Appeal 23 February 2005

Regina v Drew

[2005] NSWCCA 50

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE NO EXPRESSED DISCOUNT SENTENCING DISCRETION ERRONEOUS RESENTENCED BY CCA

Citation: Regina v Drew [2005] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 23 February 2005
Judge(s): Bryson JA; Barr J; Hoeben J

Background

The applicant pleaded guilty in the District Court at Port Macquarie to aggravated car-jacking under s.154C(2) of the Crimes Act 1900, which carries a maximum penalty of fourteen years imprisonment. The offence involved the applicant approaching a parked vehicle, punching the driver repeatedly, seizing the car keys with scissors in hand, and then driving the stolen vehicle at speeds exceeding 110 km/h in a 60 km/h zone before losing control and causing it to roll. The applicant had cooperated fully with police from the time of arrest and pleaded guilty at the first and every available opportunity.

The District Court sentenced her to five years imprisonment with a non-parole period of three years, commencing 4 September 2003. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in his treatment of the guilty plea by referencing its utilitarian value and then immediately referencing the strength of the Crown case and the difficulty of mounting any defence
  • Whether the sentencing judge failed to express any discount for the guilty plea, thereby committing an error in the exercise of sentencing discretion
  • What the appropriate sentence should be on resentencing

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error. The judge had acknowledged the utilitarian value of the guilty plea but followed that acknowledgment immediately with observations about the strength of the Crown case and the practical difficulty of any defence. No discount was expressed in the sentence.

The Court treated this as a failure to properly apply the established principle, drawn from Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383, that a sentencing judge must identify and apply a genuine discount for the utilitarian value of an early guilty plea. Tying that acknowledgment to the weakness of any available defence undermined the substance of the discount.

On resentencing, Bryson JA characterised the offence as serious, involving repeated personal violence, aggressive pursuit of the car keys, and markedly dangerous driving. He noted, however, that it did not represent the most grave instance within the range of conduct capable of constituting aggravated car-jacking under s.154C(2). Taking the applicant's prior record and breach of a suspended sentence bond as adverse factors, Bryson JA started at five years and applied a discount for the early guilty plea to reach four years.

Bryson JA also gave significant weight to the applicant's youth, difficult personal background, and the public interest in rehabilitation. Those factors justified weighting the sentence toward a longer parole opportunity, producing a non-parole period of two years rather than the three years imposed below.

Orders Made

  • Leave to appeal against sentence granted
  • The sentence imposed by the District Court on 4 December 2003 set aside
  • In substitution, the applicant sentenced to four years imprisonment commencing 4 September 2003 and expiring 3 September 2007, with a non-parole period of two years commencing 4 September 2003 and expiring 3 September 2005
  • The applicant became eligible for release to parole on 3 September 2005

Key Takeaways

  • A sentencing judge must give an identifiable and expressed discount for the utilitarian value of a guilty plea; referencing that value alongside the weakness of any defence, without expressing a discount, constitutes an error in the exercise of sentencing discretion.
  • The Court of Criminal Appeal confirmed that the principles in Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383 require the discount for an early plea to be genuine and transparently applied.
  • Where a sentencing error is established, the Court of Criminal Appeal will resentence rather than remit, and the resentencing exercise involves fresh consideration of all relevant factors including the offender's subjective circumstances.
  • Relative youth and a markedly disadvantaged background can justify weighting a sentence toward a proportionally longer parole period, reflecting the public interest in rehabilitation as well as the offender's personal interest.
  • An early and consistent guilty plea, accompanied by full cooperation with police from arrest, remains a materially significant factor in mitigation even where the Crown case is strong.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s.154C(2) (aggravated car-jacking)
- Criminal Procedure Act 1986 (NSW), s.166
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss.42(2), 12(1)(a)
- Road Transport (Driver Licensing) Act 1998 (NSW), s.25(1)(a)

Cases
- Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383
- Regina v Sutton [2004] NSWCCA 225
- Regina v Way [2004] NSWCCA 131