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Court of Criminal Appeal 18 April 2007

Saad v R

[2007] NSWCCA 98

Assault & violenceFirearms & weapons
SENTENCE APPEAL DISCOUNT FOR PLEA OF GUILTY

Citation: Saad v R [2007] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 18 April 2007
Judge(s): McClellan CJ at CL, Hulme J, Hoeben J

Background

The appellant was charged with four counts arising from events on 14 November 2005 at a Housing Commission block in Redfern. Police officers attempted to arrest him on an outstanding warrant. During the ensuing struggle in a lift and foyer, a loaded pistol was discovered near the appellant. He was not licensed to possess it.

On the day fixed for trial in the District Court, the appellant pleaded guilty to two alternative counts: possessing a loaded firearm in a public place (maximum 10 years) and assaulting a police officer (maximum 2 years). The Crown accepted those pleas in full discharge of the indictment, which had the practical effect of withdrawing the two primary counts.

Judge Sides QC sentenced the appellant to a non-parole period of 3 years on the firearms count, with a balance of term of 1 year, and a concurrent fixed term of 8 months on the assault count. The appellant sought leave to appeal, contending that the sentencing judge had erred in assessing the guilty plea discount and in applying the statutory ratio between non-parole period and balance of term.

  • Whether the sentencing judge applied the correct discount for the guilty plea, given that it was entered on the day of trial rather than at an earlier opportunity
  • Whether the sentencing judge was entitled to infer contrition from the plea, in the absence of supporting evidence
  • Whether a finding of special circumstances required the judge to give reasons for departing from the standard statutory ratio between non-parole period and balance of term
  • Whether, even if error was established, a lesser sentence was "warranted in law" under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court accepted that the sentencing judge had technically erred in two respects. First, Hulme J found no evidentiary basis for the inference of contrition. The plea was more plausibly explained by the concrete benefits the appellant received, namely a reduced sentence and the withdrawal of two counts, the latter apparently the product of negotiation before the plea was entered. An inference of contrition could only properly be drawn if it was more probably the inspiration for the plea than those other factors, and there was no foundation for that conclusion.

Second, Hoeben J found error in the way the judge had handled the special circumstances finding. Where a court finds special circumstances justifying departure from the standard ratio between non-parole period and balance of term, it must give reasons for that departure. The sentencing judge had not done so clearly.

Despite those errors, the Court declined to intervene. Under s 6(3) of the Criminal Appeal Act 1912, it is not enough to identify error. The Court must also be satisfied that some other sentence is warranted in law and should have been passed. The Court was not so satisfied.

The firearms offence was serious, and the appellant's criminal history demonstrated a continuing pattern of similar offending rather than an isolated lapse. Applying the principles from Veen v The Queen (No 2), the Court held that retribution, personal and general deterrence, and protection of the community all supported the sentence as imposed. Reducing it would have produced a sentence so lenient as to fall below the applicable discretionary range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea entered on the day of trial attracts a more limited discount than one entered in the Local Court or upon arraignment, reflecting the reduced utility of the late plea.
  • Contrition cannot be inferred from a plea of guilty alone where concrete, self-interested explanations for the plea (such as sentence reduction and withdrawal of counts) are more probable. The inference must meet the standard articulated in Holloway v McFeeters: it must be the most probable deduction from established facts.
  • Where a sentencing court finds special circumstances justifying departure from the standard statutory ratio between non-parole period and balance of term, it is required to give reasons for that variation.
  • Establishing sentencing error is necessary but not sufficient to obtain a reduced sentence on appeal. Under s 6(3) of the Criminal Appeal Act 1912, the appellate court must also be satisfied that some other sentence is warranted in law.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a prior record showing a continuing attitude of disobedience to the law, particularly for similar serious offences, may support a sentence that would otherwise appear severe when considered in isolation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 93G(1)(a)(i)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Heron v Regina [2006] NSWCCA 215
- Holloway v McFeeters (1956) 94 CLR 470
- Markarian v The Queen (2005) HCA 25
- R v Simpson (2001) 53 NSWLR 704
- R v Stambolis [2006] NSWCCA 56
- Stanford v Regina [2007] NSWCCA 73
- Veen v The Queen (No 2) (1988) 164 CLR 465