Citation: R v Timothy NEWTON [2009] NSWDC 230
Court: District Court of New South Wales
Date: 8 May 2009
Judge(s): Cogswell SC DCJ
Background
The offender was sentenced for two offences committed on the night of 8 March 2008. After setting a fire in one suburb, he made his way to a nearby address in Sutherland where a twenty-first birthday party was in progress. He broke into the unoccupied end of the house by cutting a flyscreen and forcing a window lock, then entered two bedrooms and crossed a hallway before the intrusion was discovered.
A guest's car was also stolen that night and was later found having collided with a fence. DNA evidence connected the offender to the car. He was arrested in August 2008, committed for trial in November 2008, and entered a guilty plea approximately three to four weeks before his trial date of 16 March 2009.
Both offences were committed while the offender was on bail. His sentencing for these two charges followed a separate appeal determination concerning other offences committed on the same night, and the court was required to structure the sentences so that they interacted appropriately with each other and with the appeal sentences.
Legal Issues
- What percentage discount was appropriate for a guilty plea entered only three to four weeks before trial, rather than at the earliest opportunity?
- How serious were the offences on an objective assessment, and what aggravating factors applied?
- How should the sentences for the two offences be structured relative to each other and to sentences already imposed for offences arising from the same night?
Decision
On the question of the plea discount, the court reviewed the relevant Court of Criminal Appeal authorities, including the guideline judgment in Thomson v The Queen and the subsequent decisions in Harmouche, Dib, and Borkowski. Those cases establish that the utilitarian value of a guilty plea, and therefore the available discount, diminishes the later the plea is entered. Borkowski indicated that a plea on arraignment would rarely justify more than approximately 15 per cent. The court accepted a modest upward adjustment was warranted here because the trial would have involved some complexity arising from DNA evidence, and settled on a discount of 18 per cent.
On objective seriousness, the court assessed the break and enter as falling below the mid-range. It was opportunistic rather than professional, and was committed while the offender was significantly affected by alcohol. The car theft, however, was placed in the middle of the range because the vehicle was damaged. Both offences were aggravated by the fact they were committed while the offender was on bail.
The court also considered a psychological report tendered on behalf of the offender, which was treated as relevant to prospects of rehabilitation. The court noted the offender's prior criminal history and the need for both personal and general deterrence, while acknowledging what appeared to be a genuine desire for rehabilitation.
The sentences were structured to run partly concurrently with each other and with the sentences imposed on appeal, reflecting the principle of totality. The car theft attracted a separate, partially cumulative sentence because it involved a distinct victim.
Orders Made
- Aggravated break and enter with intent to steal (s 113(2) Crimes Act 1900): total sentence of 39 months, comprising a non-parole period of 24 months commencing 1 September 2008 and expiring 31 August 2010, with a balance of term of 15 months expiring 30 November 2011.
- Take and drive a conveyance without consent (s 154A(1)(b) Crimes Act 1900): total sentence of 24 months, comprising a non-parole period of 18 months commencing 1 June 2009 and expiring 30 November 2010, with a balance of term of 6 months expiring 31 May 2011.
- First eligible date for release on parole: 30 November 2010.
- Parole authority referred to the Parole Authority (sentence exceeding three years).
- Psychological report to accompany the offender's papers.
Key Takeaways
- A guilty plea entered three to four weeks before a fixed trial date attracted a discount of only 18 per cent, meaningfully below the 25 per cent maximum, reflecting the reduced utilitarian benefit to the administration of justice from a late plea.
- Under the principles confirmed in Borkowski v The Queen, the timing of a guilty plea is the primary determinant of the utilitarian discount, and a plea on arraignment will rarely justify more than approximately 15 per cent.
- Where a plea follows a charge amendment during case management (here, from break and enter and steal to break and enter with intent to steal), the resulting advantages to the administration of justice are reduced, which may further limit the available discount.
- Committing offences while on bail is a statutory aggravating factor that increases the seriousness of the conduct assessed at sentencing.
- Partial concurrency across related sentences imposed on the same occasion can reflect the totality principle, while a degree of cumulation remains appropriate where separate offences involved distinct victims.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal; maximum 14 years)
- Crimes Act 1900 (NSW), s 154A(1)(b) (take and drive conveyance without consent; maximum 5 years)
Cases
- Thomson v The Queen (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- Harmouche v The Queen (2005) 158 A Crim R 357 (discount for late guilty pleas)
- Dib v The Queen [2003] NSWCCA 117 (discount where plea follows charge substitution)
- Borkowski v The Queen [2009] NSWCCA 102 (review of utilitarian discount principles; plea on arraignment rarely justifies more than approximately 15 per cent)