Citation: Regina v Darrell Terry McNaughton [2006] NSWCCA 242
Court: Court of Criminal Appeal, New South Wales
Date: 11 August 2006
Judges: Spigelman CJ; McClellan CJ at CL; Grove J; Barr J; Bell J
Background
The applicant pleaded guilty in the District Court to two offences arising from an incident at a holiday resort in Coffs Harbour in October 2004. He had attempted to steal coins from an amusement machine and, when confronted by the resort manager, threw an empty coffee tin at him, causing a deep laceration above the eye. He initially denied involvement before ultimately pleading guilty.
The sentencing judge imposed an effective head sentence of four years with a non-parole period of two and a half years. In doing so, the judge referred to the applicant's prior criminal history as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.
The applicant sought leave to appeal against the severity of the sentence, raising four grounds of appeal directed at both specific errors by the sentencing judge and the overall length of the sentence.
Legal Issues
- Whether the sentencing judge erred by treating the applicant's prior criminal record as an aggravating factor going to the objective seriousness of the offence, contrary to the proportionality principle
- Whether s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 permits prior convictions to be used in a way that increases a sentence beyond what the objective circumstances of the offence would otherwise warrant
- Whether the sentencing judge gave insufficient weight to the utilitarian value of the guilty plea and wrongly considered the strength of the Crown case when calculating the appropriate discount
- Whether the sentencing judge erred by failing to take into account that the offences could have been dealt with in the Local Court
- Whether the overall sentence was manifestly excessive
Decision
Prior convictions and proportionality
The Court confirmed that the principle of proportionality sets an upper boundary on sentence that is determined by the objective circumstances of the offence itself. Prior convictions do not form part of those objective circumstances and therefore cannot be used to push a sentence beyond that upper boundary. The Court held that s 21A(2)(d), which lists prior convictions as an aggravating factor, must be read consistently with this principle. The aggravating factors in s 21A(2) encompass both subjective and objective considerations as those concepts have developed at common law, and prior convictions remain in the subjective category.
The Court found, however, that the sentencing judge had not in fact used the applicant's prior convictions for any purpose inconsistent with the proportionality principle. That finding was sufficient to dispose of the first ground. The Court declined to follow earlier NSWCCA authority in R v Ponfield on this point.
Utilitarian value of the guilty plea
The Court held that the applicant's initial denial of involvement substantially reduced the utilitarian value of his eventual guilty plea. A reduction of 15 per cent was found to be appropriate in the circumstances. The Court also found that the sentencing judge had given no weight, or at most only slight weight, to the strength of the Crown case when assessing the plea discount, and that no error was established on this ground.
Proceeding by indictment and manifest excess
The Court declined to engage with the argument that the sentencing judge should have taken into account the fact that the offences could have been dealt with in the Local Court, noting that this submission had never been put to the sentencing judge at first instance. In any event, the Court considered the factor would have attracted minimal or no weight. Finally, the Court found the sentence was not excessive, let alone manifestly so, and dismissed all grounds of appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The proportionality principle requires that the upper boundary of a sentence be fixed by the objective circumstances of the offence; prior convictions do not form part of those circumstances and cannot elevate a sentence beyond that ceiling.
- Under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, prior convictions remain a legitimate sentencing consideration, but only in a manner consistent with the proportionality principle established by the High Court in Veen v The Queen (No 2).
- An initial denial of involvement in the offence is a relevant consideration that can significantly reduce the utilitarian value attributed to a subsequent guilty plea, and a 15 per cent discount was upheld as appropriate in those circumstances.
- No error arises from a sentencing judge's failure to address a consideration that was never raised by the parties at the sentencing hearing, and a judge is not obliged to exhaustively catalogue every potentially relevant factor in remarks on sentence.
- In dismissing the appeal, the Court of Criminal Appeal declined to follow R v Ponfield (1999) 48 NSWLR 327 on the question of how prior convictions interact with the proportionality principle.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 114(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (particularly s 21A(2)(d))
Key Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Baumer v The Queen (1988) 166 CLR 51
- Hoare v The Queen (1989) 167 CLR 348
- R v Wickham [2004] NSWCCA 193
- R v Ponfield (1999) 48 NSWLR 327 (not followed)
- Director of Public Prosecutions v Ottewell [1970] AC 642
- R v Thompson (2000) 49 NSWLR 383
- R v Sutton [2004] NSWCCA 225
- R v Johnson [2004] NSWCCA 76
- R v Doan (2000) 50 NSWLR 115
- Markarian v The Queen (2005) 79 ALJR 1048
- GAS & SJK v The Queen (2004) 217 CLR 198
- Weininger v The Queen (2003) 212 CLR 629