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Court of Criminal Appeal 29 April 2009

Tazelaar v R

[2009] NSWCCA 119

DrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE TOTALITY PRINCIPLE APPEAL UPHELD IN PART

Citation: Tazelaar v R [2009] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): McClellan CJ at CL; Buddin J; Rothman J

Background

The applicant pleaded guilty in the District Court to nine counts, including break and enter, break enter and steal, and receiving stolen goods. The offending arose from a late-night break-in at a medical centre in 2006 and a subsequent police search of the applicant's premises in 2007, which uncovered stolen property and prohibited drugs. He had been in continuous custody since January 2007.

The applicant's solicitor had approached the Director of Public Prosecutions in the Local Court, offering to plead guilty to certain charges if others were withdrawn. The DPP rejected that offer, and the matter was committed for trial. When the trial came on in March 2008, the DPP ultimately accepted terms more favourable to the applicant than what had originally been offered, and the applicant entered his guilty pleas without the trial proceeding.

The sentencing judge in the District Court imposed an overall non-parole period of four years and three months with an additional term of two years. The applicant sought leave to appeal, arguing the sentences were excessive, that insufficient discount had been given for the guilty plea, and that the totality of the sentences was disproportionate.

  • Whether the sentencing judge gave adequate weight to the totality principle when accumulating sentences across multiple counts
  • Whether the applicant was entitled to a meaningful guilty plea discount, given that early pleas were offered but rejected by the DPP, with the Crown ultimately accepting a more favourable resolution at the date of trial
  • Whether the individual sentences for the receiving counts were excessive given the minor nature of the items involved

Decision

The Court of Criminal Appeal found that the sentence for count 2 (the principal break, enter and steal count, which also carried two Form 1 documents) was excessive. While the sentencing judge's remarks did not make the error explicit, the Court inferred that the judge had likely failed to give an effective discount for the guilty plea.

On the question of discount, the Court recognised the applicant's situation as a particular one: he had signalled his willingness to plead guilty at an early stage, but his offer was rejected by the Crown, leading to committal and a trial listing. The plea was ultimately entered at the date fixed for trial, following further negotiations in which the Crown accepted terms more favourable to the applicant than his original offer. Taking this sequence into account, the Court assessed an appropriate discount at approximately 15%. This reflected the genuine early indication of a plea, discounted because the pleas were not formally entered until the trial date.

The Court also found the sentences for the five receiving counts to be individually excessive. Each involved very modest stolen items and, while they represented repeated conduct, none could justify a total term of four years. The Court reduced each to a fixed term of six months, to be served concurrently. The sentences for all other counts were not disturbed.

Orders Made

  • Leave to appeal granted; appeal upheld in part
  • Sentence on count 2 quashed and replaced with a non-parole period of 2 years and 6 months commencing 21 January 2008, with a balance of term of 2 years expiring 20 July 2012 (parole eligibility: 20 July 2010)
  • Counts 6, 8, 10, 12 and 14: fixed term of 6 months each, served concurrently, commencing 21 January 2008
  • Otherwise the appeal dismissed

Key Takeaways

  • Where an offender offers to plead guilty at an early stage but the Crown rejects that offer and then accepts a more favourable resolution at the trial date, the sentencing court must still give meaningful weight to the early indication of willingness to plead. The Court of Criminal Appeal assessed a 15% discount as appropriate in that scenario, recognising the delayed entry of the plea as a consequence of Crown conduct rather than the offender's own choices.
  • A failure to apply an effective guilty plea discount, even where the remarks on sentence do not make the error apparent, can constitute a sentencing error sufficient to warrant intervention on appeal.
  • Individual sentences for receiving offences must reflect the objective seriousness of the specific items involved. Where those items are modest, a total sentence of four years is capable of being found manifestly excessive even where the conduct is repeated.
  • The totality principle requires a sentencing court to stand back and assess whether the overall sentence is proportionate to the totality of the criminal conduct when multiple counts are accumulated.
  • Receiving counts that are relatively minor in character should not, by accumulation or otherwise, produce a combined sentence that is disproportionate to the gravity of that particular offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- R v Dib [2003] NSWCCA 117
- R v Hammoud [2000] 118 A Crim R 66
- R v Stambolis [2006] NSWCCA 56
- R v SY [2003] NSWCCA 291
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Weldon [2002] 136 A Crim R 55
- Veen v R (No 2) (1988) 164 CLR 465
- Wilkins (1988) 38 A Crim R 445