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Court of Criminal Appeal 13 April 2006

Rahme v Regina

[2006] NSWCCA 96

Public order & justice offences
CRIMINAL LAW SENTENCE

Citation: Rahme v Regina [2006] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 13 April 2006
Judge(s): Grove J, Adams J, Hislop J (judgment delivered by Hislop J, with Grove and Adams JJ agreeing)

Background

The applicant pleaded guilty at Burwood Local Court on 25 July 2005 to maliciously destroying or damaging property by fire, an offence under s 195(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment. The offence involved setting fire to the family home on 4 May 2005, at a time when the applicant was subject to an apprehended violence order prohibiting him from attending that property.

The sentencing judge in the District Court found the applicant to be of good character and concluded he had acted out of severe mental disorder and emotional irrationality rather than any motive of gain or revenge. The judge considered reoffending highly unlikely and structured the sentence to allow for an extended period of supervision on parole. A non-parole period of 15 months was imposed with a total head sentence of four years.

The applicant sought leave to appeal on the basis that the sentencing judge had failed to apply any discount to the sentence for his early guilty plea, as required by established sentencing principle.

  • Whether the sentencing judge erred by failing to take into account, or at least failing to expressly state that he had taken into account, the applicant's guilty plea when imposing sentence.
  • Whether a 25% discount for an early guilty plea was appropriate in the circumstances.
  • What sentence should be substituted if error was established.

Decision

The Court of Criminal Appeal found that the sentencing judge had made no reference to the guilty plea in his remarks on sentence or during submissions, either as to its utilitarian value or as evidence of contrition. That omission led the Court to infer that the discount had been inadvertently overlooked, consistent with the principle from R v Thomson that failure to explicitly acknowledge a guilty plea will generally be taken to indicate the plea was not given weight.

The Crown argued the discount should be inferred from the overall sentence, pointing to the fact that counsel had raised the plea during submissions, that the plea was mentioned in the materials, and that the resulting sentence was not inconsistent with a discounted figure. The Court rejected this submission. The choice of a four-year head sentence was equivocal on the statistics, and the complete absence of any reference to the plea in the sentencing remarks was determinative.

Hislop J accepted that a 25% discount was appropriate given the plea was entered at the earliest available opportunity. This reduced the total sentence from four years to three years. However, his Honour retained the non-parole period of 15 months unchanged. The judge had set that period by reference to the applicant's subjective circumstances rather than as a simple mathematical product of the total term, and the overall criminality, including the aggravating factor of breaching the apprehended violence order, did not warrant a shorter non-parole period.

Because the retained non-parole period now exceeded the statutory ratio to the reduced total term, the Court was obliged under s 50 of the Crimes (Sentencing Procedure) Act 1999 to direct the applicant's release on parole at the end of the non-parole period.

Orders Made

  1. Leave to appeal granted.
  2. Appeal as to sentence allowed.
  3. The sentence imposed by Finnane DCJ on 30 September 2005 is quashed.
  4. In lieu thereof, the applicant is sentenced to a non-parole period of one year and three months commencing 4 May 2005 and expiring 3 August 2006, with a balance of term of one year and nine months commencing 4 August 2006 and expiring 3 May 2008.
  5. The applicant is directed to be released on parole at the end of the non-parole period pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A sentencing judge is required to explicitly state that a guilty plea has been taken into account. Failure to do so will generally be taken to indicate the plea received no weight, even where the fact of the plea was raised by counsel during submissions.
  • The Court of Criminal Appeal confirmed that an early guilty plea ordinarily attracts a 25% utilitarian discount, consistent with the approach in R v Thomson.
  • Where a non-parole period has been set by reference to subjective circumstances rather than derived mechanically from the head sentence, reducing the head sentence on appeal does not automatically require a corresponding reduction in the non-parole period.
  • Breaching an apprehended violence order in the course of committing an offence constitutes an aggravating factor that bears on the overall criminality of the conduct.
  • Under s 50 of the Crimes (Sentencing Procedure) Act 1999, where a non-parole period exceeds the statutory ratio to the total term, the court must direct the offender's release on parole at the end of the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases
- R v Thomson (2000) 49 NSWLR 383
- Regina v Shenton [2003] NSWCCA 346